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IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE : : GANNAVARAM
Present: Sri M.Venkateswara Rao.,
Principal Junior Civil Judge, Gannavaram.
Friday, this the 13th day of April, 2018
O.S. No.282006
Between: Katuru Yedukondalu, S/o. Parasuramaiah, Hindu, aged about 72 years, resident of Gannavaram Village, Gannavaram Mandal, Krishna District. ….Plaintiff.
Vs
Katuru Arjuna Rao, S/o.Parasuramaiah, Hindu, aged about 67 years, resident of Gandhi Nagar, Nuzvidu, Krishna District. ….Defendant.
This suit coming on 15032018 for final hearing before me in the presence of Smt S.T.G.Neeraja, Advocate for Plaintiff and Sri G.Rambabu & Sri G.S.R.Murthy, Advocates for Defendant and upon hearing the arguments and gone through the evidence on record and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. The suit is filed for specific performance of Agreement of Sale dated 09072000 executed by the Defendant in favour of the Plaintiff, for consequential relief of permanent injunction restraining the defendant and his men and agents from interfering with the peaceful possession and enjoyment of the Plaintiff over the suit schedule site and for costs of the suit.
2. The brief averments of the plaint are that :
a) The Plaintiff is the brother of the Defendant. The house site in an extent of Ac.0.07 cents situated in R.S.No.446/03 of Gannavaram is the joint house site of the Plaintiff, the defendant and their brothers viz.Venkateswarlu and Late
Sathyanarayana. On 29012000 the Plaintiff, the defendant, Venkateswarlu and the children of Sathyanarayana partitioned the said house site in the presence of their 2 caste elders P.Nageswara Rao, M.Venkateswara Rao and others and engrossed the same on stamp papers.
b) In the said partition, 84 square yards site situated on southern side fell to the share of Venkateswara Rao and the same is shown as ‘Aschedule’ in the partition list. The sons of Sathyanarayana got 84 square yards site shown as ‘Bschedule’ in the partition list. The plaintiff got 84 square yards shown as ‘Cschedule’ and the defendant got 84 square yards site shown as ‘Dschedule’ in the partition list. Ever since the date of partition they are in enjoyment of their respective shares.
c) Later the defendant with an intention to purchase a house at Nuzvidu had proposed to sell the share of site he got in the partition and the plaintiff agreed to purchase the same. The bargain was settled down at Rs.27,000/ as sale consideration and the plaintiff paid the entire sale consideration to the defendant on 09072000 and the defendant executed an agreement of sale with possession in favour of the plaintiff in the presence of P.Nageswara Rao, M.Venkateswara Rao and others and delivered the site to the Plaintiff. The plaintiff requested the defendant to execute a regular sale deed later since the plaintiff was in financial crises to meet the registration expenses as he paid the amount available to the defendant towards the sale consideration. Since the date of the agreement of sale the Plaintiff has been in peaceful possession and enjoyment of the suit schedule site and the site he got in the partition.
d) As per terms of the agreement of sale, the defendant is under a legal obligation to execute the regular sale deed in the name of the Plaintiff as and when the 3
Plaintiff required it. The Plaintiff had been demanded the defendant since last 2 years to execute the regular sale deed but the defendant did not care to do so. Therefore, the plaintiff got issued a legal notice dated.29122015 to the defendant and demanded to execute a regular sale deed.
e) Having received the said notice, the defendant got issued a reply with false averments stating as a collateral security of amount of Rs.10,000/ the agreement was executed and the defendant has no intention to execute the sale agreement. The defendant along with his two sons jointly executed a registered relinquishment deed in favour of his another son Srinivasa Rao and the defendant called upon the plaintiff to take agreed Rs.10,000/ and return the agreement. On receipt of the said notice, the defendant along with henchmen came to the Plaintiff’s house on 15012006 and demanded the plaintiff to vacate the suit schedule premises but at the intervention of the elders and neighbours the defendant left the place. In the said circumstances, the plaintiff was constrained to file the present suit.
3. Having received the suit summons, the defendant made his appearance through his counsel. He filed a detailed written statement. He denied the material averments of the plaint in his written statement. The brief averments of the written statement are as under :
a) The house site of Ac.0.07cents in R.S.No.446/3 of Gannavaram is ancestral property of the Plaintiff, the defendant and their two brothers. The said house site was partitioned in 1984 among them and in the said partition the suit schedule site was allotted to the defendant. Ever since then all of them have been in 4 their respective separate possession and enjoyment of the house sites allotted to them in the above said partition. Later on 29012000 partition lists were executed among the brothers of the plaintiff since in 1984 no document was executed as regards to the partition. At the time of execution of the partition list on 29012000, the elders required the defendant and children of Sathyanarayana to give Rs.10,000/ cash to the
Plaintiff on the ground the Plaintiff is a poor person and having two children with weak intelligence. The defendant agreed to pay Rs.10,000/ as per the advice of the elders.
b) The defendant denied the contents of the sale agreement dated.0907 2000 and receipt of consideration of Rs.27,000/ from the Plaintiff. The defendant never executed the sale agreement and he never offered to sell the suit schedule site. The defendant could not pay Rs.10,000/ to the plaintiff within 6 months from 29012000 due to the financial difficulties. The elders Ch.Venkateswara Rao and P.Nageswara
Rao insisted the defendant to execute an agreement of sale in favour of the Plaintiff towards security for due payment of the said Rs.10,000/. Under the said circumstances, the defendant executed agreement of sale in favour of the Plaintiff but it was not intended to acte upon as agreement of sale. No possession was delivered to the plaintiff in pursuance of the said agreement.
c) The defendant continued to be in possession and enjoyment of the suits schedule site till he relinquished his share in it in favour of his son Katuri Srinivasa
Rao under registered relinquishment deed dated.28112005. The plaintiff is an agricultural labourer and he has no financial status to pay Rs.27,000/ to the defendant and the contents of the agreement of sale are not correct. The defendant has got a house at Nuziveedu even by 09072000 and thus the recitals of agreement of sale in 5 the said regard is not true. The Plaintiff never demanded the defendant either personally or through elders to execute a sale deed as the said agreement was executed as a security. The plaintiff got issued a registered notice dated.29122005 and the defendant issued suitable reply and narrated true set of facts. He expressed the readiness to pay Rs.10,000/ to the Plaintiff. No incident happened on 15012006 as mentioned in the plaint and the plaintiff invented the same with a view to buttress the false claim.
d) The suit schedule site being ancestral one belongs to the defendant and 3 sons of the defendant. The defendant and his two sons Subramaneswara Rao and
Durga Prasad relinquished their right in the suit schedule site in favour of Srinivasa
Rao under registered relinquishment deed dated.28112005 on receipt of Rs.67,000/ as consideration. The defendant ceased to have valid title over the suit schedule site in view of the above said relinquishment deed. Now the suit schedule site is in possession and enjoyment of Katuri Srinivasa Rao. Therefore, he is a proper and necessary party to the suit and thus the suit is bad for nonjoinder of the necessary party. The plaintiff is not entitled to the suit relief of specific performance and the defendant is ready to pay Rs.10,000/ to the plaintiff as promised before elders. The partition list dated.2901 2000 and the agreement of sale dated.09072000 are invalid documents and inadmissible in evidence due to lack of proper stamp duty and in view of Sec.17 of
Indian Registration Act. Therefore, the defendant prayed to the court to dismiss the suit.
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4.During the trial, on behalf of the Plaintiff, PWs1 and 2 were examined and
ExsA1 to A16 were marked. On behalf of the defendant, DW1 was examined and Exs
B1 and B2 were marked.
5. Basing on the pleadings, the following issues are framed for trial:
1) Whether the agreement of sale deed dt.09.07.2000 was executed as a
security for payment of Rs.10,000/ by the defendant?
2) Whether plaintiff is in possession and enjoyment of the plaint schedule property?
3) Whether the suit is bad for nonjoinder of proper and necessary party?
4) Whether the plaintiff is entitled to specific performance of agreement of sale dt.09072000 as prayed for?
5) Whether plaintiff is entitled to injunction as prayed for?
6) To what relief?
6.I have heard both sides. I have gone through the entire evidence on record.
7. Issue No.1: Whether the agreement of sale deed dt.09.07.2006 was executed as a security for payment of Rs.10,000/ by the defendant?
The plaintiff himself is examined as PW1 and examined the attestor of
ExA3 as PW2 and placed reliance on ExsA1 to A16 to establish the plaintiff’s case.
The defendant himself is examined as DW1 and placed reliance on ExsB1 and B2 to substantiate the version of the defendant. It is the contention of the Plaintiff that when the Defendant intended to sell the suit schedule site, he agreed to purchase the same for a sale consideration of Rs.27,000/ and the Defendant having received the entire sale consideration he executed an agreement of sale dated 09072000 marked as Ex.A3 7 in favour of the plaintiff and delivered the suit schedule site to the plaintiff on the date of execution of ExA3. The learned counsel for the plaintiff argued that the recitals of
Ex.A3 are clear and leave no doubt as regard to the sale of the suit schedule site. She further argued that in view of the stand of the Defendant the burden lies upon the
Defendant to prove Ex.A3 was executed towards security for payment of amount of
Rs.10,000/ to the Plaintiff. Per contra, the learned Defendant’s counsel argued that the
Defendant never intended to sell the suit schedule site and at the advice of the caste elders, the Defendant executed Ex.A3 as security for the payment of the said amount, and the burden lies upon the plaintiff to prove the correctness and validity of ExA3.
8.It is not in dispute that the Plaintiff’s Counsel filed a memo before the
Court to direct the Defendant to commence the trial as he admitted the execution of
Ex.A3 and he has not denied the signatures on Ex.A3. It is true that the Defendant admitted execution of Ex.A3 in the Plaint as well as in the reply notice got issued to the notice issued at the instance of the Plaintiff. This Court thus directed the Defendant to commence the trial in view of the Issue No.1 as per order in the memo dated 1206 2013. The Defendant preferred a revision against the said order on the said memo vide
C.R.P No. 3262/2013 and the Hon’ble High Court having considered all the facts held the burden lies upon the Plaintiff to prove the execution of Ex.A3 and therefore, rejected the order on memo dated 12062013, and directed the Plaintiff to commence the trial. The said final order of High Court shows the burden lies upon the Plaintiff to prove Ex.A3 is genuine and recitals are true and correct.
9.The learned Plaintiff’s counsel argued that there are categorical admissions on the part of the Defendant as regard to the signatures appear on Ex.A1 to 8
A3 are that of the Defendant and further, the execution is admitted in Written
Statement as well as Reply Notice marked as Ex.A6. The learned Defendant’s Counsel did not dispute the signatures of the Defendant on Ex.A1 to A3 and the admission of the execution in Written Statement and Reply Notice. The contentions of the
Defendant is that he never intended to execute Ex.A3 to sell the suit schedule site but he executed the same at the instance of the elders as security to the due payment of the agreed amount of Rs.10,000/ to the Plaintiff.
10. The learned Plaintiff’s counsel placed reliance on Judgment in the case of
Satish Mohan Bindal Vs. The state of U.P. reported in AIR1986 All 126 in order to support her contention that the admissions in the pleadings bind the defendant and the averments of written statement and the reply notice admit the execution of ExA3 agreement. I have gone through the above referred Judgment. In the said Judgment it was held that admissions in pleadings or Judicial admissions are admissible U/s.58 of
Evidence Act and the same stand on higher footing than the evidential admissions. The admissions on part of the parties bind them and constitute a waiver of proof though the evidential admissions are not conclusive and can be shown to be wrong.
11.I have gone through Ex.A1 to A3 and the Reply Notice under Ex.A6.
There are categorical admissions as regard to the execution of Ex.A3. Furthermore, there is no whisper in Ex.A3 to the effect the Defendant executed the same towards security to the payment of the agreed amount of Rs.10,000/. The recitals of Ex.A3 are unambiguous and agreement is completed and concluded contract. Though the
Defendant contended that at the instance of elders, he executed Ex.A3 as security, but 9 he did not choose to examine the alleged elders. Moreover, there is no dispute as regard to the signatures on ExsA1 to A3 are that of the defendant. No effort is made from the end of the Defendant till he received legal notice under Ex.A4 to pay the alleged Rs.10,000/ to the Plaintiff and get cancelled agreement under Ex.A3. The conduct of the Defendant is much clear that he is aware of the consequences of the agreement and no effort is made either to rescind the contract or to cancel it.
12.Whenever, a written instrument is executed either by the requirement of law or by the contract of the parties, its terms alone are deemed to be the repositories of what the parties wish to state and the oral evidence to contradict such recitals is excluded. Sec.92 of Indian Evidence Act prohibits the extrinsic or oral evidence to alter the terms of the disposition under the written instrument. No oral evidence is permissible to contradict, vary, add or subtract to and from the recitals of the terms of the instrument. If one of the parties to the instrument wants to show some important term is not incorporated in the instrument he can prove the same through parole evidence. In the instant case, the defendant did not choose to adduce such evidence.
Except the self serving statement of the defendant nothing was adduced or elicited from the mouth of Pws1 and 2 to prove the fact ExA3 was executed towards the security for the payment of the agreed amount of Rs.10,000/. Moreover, the single admission that the elders suggested the Defendant to look after the welfare of the
Plaintiff’s family is not sufficient to prove Ex.A3 is executed towards security and no evidence is let in to prove the said suggestion in translated into action.
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13.Further, it is not in dispute that the Defendant worked in Judicial
Department for a considerable period at the time of execution of Ex.A3. There are no whispers in Ex.A3, the Defendant executed the same towards the payment of agreed amount of Rs.10,000/ to the Plaintiff and the Defendant admitted the same in cross examination. Further, he admitted in cross examination that he did not cause any legal notice to the Plaintiff to rescind the agreement under Ex.A3. Therefore, the material brought before the Court shows the Defendant executed Ex.A3 in favour of the Plaintiff and the recitals are proved to be correct. The ratio laid in the above referred Judgment is applicable to the facts of the case on record. The evidence of Pws1 and 2 and DW1 establishes the existence of ExA3 and its execution. Moreover, during cross examination, ExA3 was confronted to the defendant and he admitted the same as true and correct. In the said circumstances, the burden shifts to the Defendant to disprove the recitals are not true and correct.
14.The Defendant had cross examined PW1 and PW2 at length but nothing was elicited to show Ex.A3 is not enforceable and the recitals are not true and correct.
The learned Defendant’s Counsel argued that Plaintiff contended the Defendant executed Ex.A3 with an intention to purchase the house in Nuzvid but even prior to the execution of Ex.A3, the Defendant purchased the house and it itself shows there is no truth in the contention of the Plaintiff. In order to support the said contention, the
Defendant placed reliance on Ex.B2Sale Deed. I have gone through the recitals of
Ex.B2Sale Deed. The date of Ex.B2 is 2641999 whereas the agreement of sale is
dated 09072000. Therefore, the transaction under Ex.B2 had taken place prior to the
execution of Ex.A3. But the said contention of the Defendant cannot be acceptable on 11 the ground that though the Defendant expressed the intention to purchase the house, but the Plaintiff is noway concerned to the said intention of the Defendant as the same lies in the exclusive knowledge of the defendant. The evidence of PW1 and PW2 shows the Defendant sold the suit schedule site and received the consideration of Rs.27,000/ from the Plaintiff. The said evidence of PW1 and PW2 gets corroboration from the recitals of Ex.A3.
15.Furthermore, PW2 who is one of the witnesses to the agreement deposed that he was present and witnessed the Defendant received consideration from the
Plaintiff. The learned Defendant counsel argued that PW2 could not depose the time, date and year of the execution of Ex.A3 and he signed on Ex.A3 subsequent to its execution. It is true, PW2 could not depose the relevant dates, but the evidence of PW2 cannot be brushed aside on the said ground alone since the evidence of PW2 is consistent that he was present at the time of execution of Ex.A3 and further signature of PW2 appears on Ex.A3. The Defendant has not denied the said fact, but contended the signature was obtained subsequent to its execution. The Ex.A.3 transaction took place in 2000 and P.W.2 gave evidence in 2017. In the said circumstances, it is natural one cannot remember the date and time of transactions that took place 17 years back and the same is not a valid ground to suspect and disbelieve the evidence of P.W.2.
Therefore, in view of the evidence of P.W.2, the burden lies upon the Defendant to establish the signature of P.W.2 was obtained later on. But the Defendant could not discharge the said burden and therefore the evidence of PW1 and PW2 can be believed and their evidence supported the recitals of Ex.A3.
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16.The learned Defendant’s Counsel further argued that Plaintiff has no financial status to purchase the suit schedule site and he has no amount to pay
Rs.27,000/ at the time of execution of Ex.A3. PW1 deposed in categorical terms that he kept the amount with their brother Venkateswara Rao and he brought the amount from the said Venkateswara Rao on the date of execution of Ex.A3 and handed over to the Defendant. Further, the evidence of PW1 shows he is having financial status to pay the said consideration. The learned Defendant’s Counsel nothing was elicited to disprove the financial status of the Plaintiff.
17.Further, it is evident from the pleadings and evidence on record that the agreement of sale under Ex.A3 is dated 09072000. It is the contention of the
Defendant that he could not pay the agreed Rs.10,000/ within six months from the date of execution of partition lists under Ex.A1 and Ex.A2, the elders instructed the
Defendant to execute Ex.A3. Ex.A1 and Ex.A2 are dated 29012000 whereas agreement of sale under Ex.A3 is dated 09072000. In the evidence, DW1 deposed he could not pay the agreed Rs.10,000/ within six months and therefore, he was forced to execute Ex.A3. If the relevant dates are considered, Ex.A3 would be executed subsequent to 29072000, but Ex.A3 is dated 09072000. The defendant has not disputed the date of ExA3. Therefore, the said version of the Defendant is also not believable. Furthermore, if the Defendant is aware of the legal consequence of the existence of Ex.A3 and if he really executed the same towards security, he would have expressed his readiness to pay the amount and get the agreement, either rescinded or canceled. No notice was got issued at the instance of the Defendant to cancel or rescind the contract under Ex.A3. The Defendant, first time in the reply notice under Ex.A6, 13 stated he is ready to pay the agreed amount of Rs.10,000/ and contended the agreement was executed towards security.
18.As stated above, the recitals of Ex.A3 are clear and unambiguous. Where the recitals of a document are in such manner, the oral evidence would not be allowed to defeat the recitals of ExA3. If at all the Defendant wants to defeat the same, he can adduce parole evidence. However, the Defendant could not adduce such evidence to show the recitals of Ex.A3 are not true and correct. Moreover, in view of the employment of the Defendant and the legal knowledge, the version of the Defendant is not believable. It was specifically mentioned in Ex.A4Legal Notice that Defendant executed Ex.A3 having received sale consideration of Rs.27,000/ and agreed to execute a Regular Sale Deed as and when the Plaintiff required to do it. In the said circumstances, the defense of the Defendant as regard that Ex.A3 was executed towards security is not acceptable and the Defendant could not discharge the burden lies upon him to prove the same.
19.Further, it is not in dispute that suit schedule site fell to the share of the
Defendant in the partition. Though the Defendant disputed the partition had taken place in 1984 but it is not in dispute the partition list was executed on 29012000. In view of the contentions of the both parties and the evidence on record together with the partition list under Ex.A1 and Ex.A2 show the Defendant was the absolute owner of the suit schedule site in view of the partition. However, it was pleaded that Defendant has no title to pass to the Plaintiff under Ex.A3. It is the contention of the defendant that he along with his sons executed a relinquishment deed under original of ExB1 in 14 favour of his another son Srinivasa Rao. He is further argued that the suit schedule site is their ancestral site and the plaintiff failed to show Parasuramaiah i.e. the father of the plaintiff and the defendant is the original owner of the suit schedule site.
20.It is true as is evident from the evidence of PW1 that nowhere either in plaint or in evidence affidavit it is mentioned their father Parasuramaiah is the original owner of the entire Ac.0.07cents site. However, in cross examination DW1 made categorical admission to the effect their father is the owner of the site and after demise of their father, the plaintiff, the defendant and other brothers partitioned the site of their father. He further made an admission that the suit schedule site is the part and parcel of the site of their father. The said answers dispelled and removed the doubt as regard to the ownership of the plaintiff’s father over the Ac.0.07cents site.
21.The defendant placed reliance on ExB1 to show the relinquishment of the right of the defendant and his sons in favour of his another son Srinivasa Rao and he pleaded lack of title and at best the defective title. The learned plaintiff’s counsel argued the defendant cannot setup such plea in a suit for specific performance filed by the purchaser. In order to substantiate said contention reliance was placed on the
Judgment in the case of Mir Abdul Hakeem Khan Vs Abdul Mannan Khadri reported in AIR 1972 Andhra Pradesh 178 where in the Hon’ble High Court held that it is the settled law that if a person executes an agreement to sell property, the vendor is not entitled to foot forth in a suit for specific performance by the purchaser the defence that the vendor had no title. It is open to the purchaser to set up a defence that the vendor had no title or has defective title in a suit for specific performance by 15 the vendor. It was further held that in a suit for specific performance there is no need to determine the question of vendor’s title and the fact that the title which the purchaser may acquire might be defeasible by a third party is no ground for refusing specific performance when the purchaser is willing to take such title vendor has. In this case, there is no question the plaintiff attempts to bind the interest of persons not parties to the contract and make them parties. Therefore, the person who are not parties to the agreement are not necessary parties and their presence is not essential to decide the issues in a effective and complete manner.
22.As evident from the ratio laid in the above Judgment it is settled law that the Defendant vendor cannot raise plea of defective or lack of title over the subject matter of the agreement in a suit for specific performance and on the other hand, the purchaser can put forth such plea and demand the vendor to return the earnest money/sale consideration U/sec.13 of Specific Relief Act. Furthermore, even the vendor defendant adduce evidence to prove the defective or lack of title the same is not acceptable and cannot be looked into in view of the settled law and the provisions of sec.13 of Specific Relief Act.
23.Furthermore, there are no grounds to show the contract under Ex.A3 is not valid one. The learned Defendant’s Counsel argued that the sale consideration is not adequate and it itself shows Ex.A3 is not a genuine one. It is settled law and
U/sec.20(2)(1) of Specific Relief Act inadequate consideration is not a ground to show the agreement is not valid. The explanation (1) to subsection(2) of Section.20 of S.R.
Act, envisages “the mere inadequate consideration or mere fact the contract is onerous to 16 the Defendant is improper in its nature shall not be deemed to constitute an unfair advantage”. In view of the said specific provision, the contention of the Defendant as regard to the inadequate consideration is not at all acceptable. Further PW1 testified in cross examination that at the time of ExA3 transaction some one purchased 3½ cents site situated near by the suit schedule site for Rs.30,000/. It shows there is no question of inadequate consideration under ExA3 transaction. Furthermore, the time is not essence of the contract in the present suit and the Plaintiff and Defendant are own brothers. In view of the said close relationship and the circumstances stated above the consideration is not a material ground to doubt recitals of Ex.A3 .
24.The evidence on record thus establishes the defendant executed ExA3 in favour of the plaintiff and the version of the defendant he executed ExA3 as security is rejected. Further, nothing was elicited to prove ExA3 is not a valid document and is not enforceable. It is not case of the defendant ExA3 was executed on the grounds of fraud and misrepresentation and there is no free consent from the defendant. There is no such stand as seen from the averments of the written statement. In view of the said circumstances, it can safely be held ExA3 is enforceable against the defendant.
25.The learned plaintiff’s counsel placed reliance in the case of
R.Puthunainar Alhithan Etc vs P.H. Pandian & Ors. reported in AIR 1996
1599 and State of U.P. Vs. Dr. Ravindra Prakash Mittal reported in AIR 1992
SC 2045. I have gone through the above referred Judgments and the same are not
applicable to the facts of the case on hand on the ground the above cases are not in respect of the civil disputes. It is settled law that the standard of proof of a fact is 17 different in Civil Suits and the criminal cases. In view of the same, the facts and the ratio laid in the above referred Judgments cannot be applied in the present suit.
26.Having considered the evidence of the Plaintiff and Defendant and the documents brought on record, I hold that Plaintiff could able to establish Ex.A3 was executed not as security and it is true and genuine document and binds the Defendant.
Therefore, I hold Ex.A3 is true, valid and enforceable document against the Defendant and it is not executed as security for payment of Rs.10,000/. Accordingly the issue is answered in favour of the plaintiff and against the defendant.
27. Issue No.2: “Whether plaintiff is in possession and enjoyment of the plaint schedule property?”
The learned Plaintiff’s Counsel argued that the Defendant delivered the suit schedule site to the Plaintiff on the date of Ex.A3 and since then the Plaintiff is in possession and enjoyment of the same. In support of the said argument, the learned
Plaintiff’s counsel placed reliance on Ex.A7 to Ex.A15. On the other hand, the learned
Defendant’s Counsel argued Ex.A7 to Ex.A15 do not belong to suit schedule site and it belongs to the house of the Plaintiff got in the above referred partition. I have gone through Ex.A7 to Ex.A15. The recitals of Ex.A7 go to show the Plaintiff is having a thatched house with door No. 6134 with assessment No.1084 in Gannavaram Village of Gannavaram Mandal. Ex.A10, 13 and 15 are house tax receipts and the same disclose the tax was paid in the name of the Plaintiff to the house bearing door No. 6
134. Whereas, Ex.A9 to A12 are electricity consumption charges with Service
No.6511201002980 stands in the name of the Plaintiff.
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28. Coming to the oral evidence of PW1, he admitted in cross examination that earlier to the partition, there was a thatched house in the vacant site and later it was demolished. The said vacant house site fell to the Plaintiff’s share and he continued to reside in the said thatched house. He further made categorical admission that there was a electrical connection to the said thatched house and the same service number and house number is continued till today. It was suggested to PW1 Exs. A7,
A9 to A15 belongs to old thatched house but not connected to the suit schedule site.
The categorical admissions of the recitals of Ex.A7, A9 to A15 show the same belongs to the earlier thatched house. The learned Plaintiff’s Counsel argued that the Defendant admitted in cross examination, the site fell to the share of the Plaintiff and the
Defendant constituted a single plot and the photos under Ex.A16 and the admissions of the Defendant in cross examination established the Plaintiff is in possession and enjoyment of the suit schedule site. It is true, there are categorical admissions on the part of the Defendant in cross examination that suit schedule site and the site of the
Plaintiff constituted a single plot. Further, he admitted that the site of the Plaintiff is situated towards the southern side of the suit schedule site. He admitted the contents of the photos under Ex.A16 to show the suit schedule site was delivered to the Plaintiff on the date of execution of Ex.A3 and the Defendant could not disprove the evidence of
PW1 to the effect he is not in possession and enjoyment of the suit schedule site.
29.The learned Defendant’s counsel argued that the Defendant along with his two sons relinquished the suit schedule site in favour of his other son Srinivasa Rao under Ex.B1Relinquishment Deed and since then, he is in possession and enjoyment of the suit schedule site. In order to prove the handing over of the possession to the son of 19 the Srinivasa Rao, the Defendant must show he was in possession and enjoyment of the same. The recitals of Ex.A3 categorically show the Defendant delivered the suit schedule site to the Plaintiff. Though Ex.A7, A9 to A15 connected to the old house but the categorical admission of the Defendant in evidence proved the possession and enjoyment of the Plaintiff. Furthermore, the Plaintiff filed a memory card relating to the photos under Ex.A16 and the affidavit of the concerned photographer. The learned defendant’s counsel did not dispute the ExA16 in the affidavit of the photographer concerned. The plaintiff, therefore, complied the mandate of Sec.65B of Indian
Evidence Act. The Defendant’s Counsel could not elicit anything to shatter the evidence of Plaintiff as regard to the possession and enjoyment of Suit schedule site.
30.Further, the said Srinivasa Rao is a stranger to the ExA3 transaction and
ExB1 is executed subsequent to ExA3 transaction and the recitals of ExB1 show the claim of Srinivasa Rao is adverse to the title of the defendant vendor. In the said circumstances, and in view of the evidence brought on record no reliance can be placed on ExB1. Therefore, having considered the material evidence on record I hold the
Plaintiff could able to establish he is in possession and enjoyment of the suit schedule site. Accordingly, the issue is answered in favour of the plaintiff and against the defendant.
31.Issue No.3: “Whether the suit is bad for nonjoinder of proper and necessary party?”
The learned defendant’s counsel argued that the plaintiff did not choose to add the son of the defendant by name Srinivasa Rao who is in possession and 20 enjoyment of the suit schedule site under the relinquishment deed marked as ExB1.
The learned plaintiff’s counsel in answer argued that ExB1 is a collusive document brought into existence to protract the litigation and Srinivasa Rao is neither a proper or necessary party to the suit. I have gone through ExB1. The recitals of ExB1 go to show the defendant herein is the father of Srinivasa Rao, Venkata Subramaneswara
Rao and Durga Prasad and the defendant along with the said Venkata
Subramaneswara Rao and Durga Prasad relinquished their right over the suit schedule site in favour of Srinivasa Rao and received Rs.67,000/ as consideration on 28112005.
The recitals further go to show the said site is the ancestral site of the defendant and the defendant got the suit schedule site in the oral partition effected among he and other brothers after the death of Parasuramaiah i.e. the father the defendant and the plaintiff.
32.The ExB1 is dated.28112005 where as the ExA3 is dated.09072000. It shows the ExB1 was executed subsequent to the ExA3 transaction. It is the strong contention of the plaintiff that the ExB1 is a collusive document brought into existence to defeat the ExA3 transaction and therefore, ExB1 is non est in eye of law.
In evidence DW1 made categorical admission that he has knowledge of the existence of
ExA3 and he has not made efforts to get it rescinded or cancelled. The recitals of Ex
B1 show there is no prior transactions or alienations of the site covered under ExB1 i.e. suit schedule site. Further, till the plaintiff got issued legal notice there is no response from the defendant regarding the existence of ExA3 agreement of sale.
Further it was elicited there are amicable terms and good relationship between the defendant and the sons of the defendant. It itself shows ExB1 was brought into 21 existence with tainted mind. Further, if the said Srinivasa Rao is impleaded the nature and scope of the suit would be enlarged in to the suit for title. Though Order1 Rule10
C.P.C. envisages the impleadment of the necessary parties to put an end to the litigation and to avoid the multiplicity of the proceedings but on that score alone the scope of the suit cannot be enlarged.
33.In the instant case, the defendant argued Srinivasa Rao in whose name
ExB1 was executed is a necessary party. Though ExB1 was produced to show the relinquishment of the right of the defendant and other sons of the defendant in favour of Srinivasa Rao but it was executed subsequent to the date of execution of ExA3.
Further, the recitals would show there is a tainted mind on the part of the defendant.
The said Srinivasa Rao claimed right over the suit schedule site through the defendant and in view of Sec.16 (c) of the Specific Relief Act all the persons who claim title through the defendant are to be ordered to join to execute a valid deed if specific performance is ordered.
34. The learned plaintiff’s counsel argued that the strangers to the contract are not necessary parties to the suit for specific performance and if such persons are added the nature and scope of the suit would be enlarged into the suit for title and the same is not permissible. She further argued that the recitals of ExB1 show the defendant and his sons claim equal share in the suit schedule site treating the same as their ancestral property but the same is not their ancestral property and the defendant got the same in the partition. Even the recitals of ExB1 show the site was allotted to the defendant but it was recited the same was in the possession and enjoyment of the 22 defendant and his sons but nowhere it is mentioned and no evidence was brought on record how the defendant’s sons acquired title to the suit site.
35.The learned plaintiff’s counsel in support of her argument placed reliance on the Judgment in the case of Mrs. Anjana Vij Vs. Mr.Krishan Dev and another.
In the above referred Judgment, it was held that the strangers to the agreement of sale are not proper or necessary parties to the suit and if the said persons are added to the suit the scope of the suit could be enlarged into a suit for title, and for effective adjudication of controversies involved in the suit, the present parties cannot be said to be necessary at all.
36.The plaintiff claims to be in possession of the suit schedule site and issue no.2 is answered in affirmative in favour of the plaintiff and the plaintiff denies the genuineness of ExB1 transaction. As stated above, the defendant vendor is precluded and not permitted to plead the defective or lack of title. Where the plaintiff purchaser does not implead the subsequent purchasers who claims independent title against the defendant vendor and such inaction on the part of the plaintiff cannot be disentitle to claim specific performance. In the present suit, the plaintiff sought specific performance of contract against the defendant and in view of the recitals of ExB1 the presence of Srinivasa Rao would certainly convert the scope and nature of the suit into the suit for title. Therefore, the ration laid down in the above referred Judgment is applicable to the case on hand.
37.The learned plaintiff’s counsel further placed reliance in the case of
Damacharla Venkata Seshaiah vs Damacharla Venkayya And Ors. reported in 23
AIR 1974 AP 193 where in the Hon’ble Court held where the subsequent purchaser entered into an agreement to purchase the property with full knowledge of the prior agreements in favour of the plaintiff, the injury or hardship if any was self inflected one and the said subsequent purchasers could not setup their own wrong against the plaintiff to defeat the plaintiff’s claim, and in the said circumstances, no discretion can be exercised in favour of the defendant/subsequent purchaser on the ground of bonafide purchaser and against the plaintiff. In the present case on hand the above said
Srinivasa Rao is the son of the defendant herein and in view of the close relationship and amicable terms between them, the knowledge of existence of ExA3 can be inferred and in the said circumstances, the ExB1 cannot be setup to defeat the rights of the plaintiff under ExA3. Therefore, the ratio laid in the above referred Judgment is applicable to the facts of the case on hand.
38.The learned plaintiff’s counsel further placed reliance in the case of
Panne Khushali And Anr. vs Jeewanlal Mathoo Khatik And Anr. reported in
AIR 1976 MP 148 where in it was held that strangers to the contract who makes an adverse claim and title against the defendant vendor is not a necessary party and he cannot be impleaded to the suit as the defendant. The persons who are mentioned in sec.19 of the Specific Relief Act are alone necessary parties to the suit for specific performance. In the present case Srinivasa Rao who claims to be owner of the suit schedule site under ExB1 pleaded adverse claim and title to the defendant vendor as coowner and he is not party to the ExB3 agreement. Therefore, in view of the ratio laid down the above referred case and the facts and circumstances of the case he is 24 neither a necessary or proper party. The ratio laid in the above Judgment is thus applicable to the facts of the case on hand.
39.Furthermore, the evidence on record shows there are amicable terms between the defendant and his sons and the Srinivasa Rao did not choose to come to court to implead him as a defendant. Further, the defendant cannot be permitted to plead he has no title over the suit schedule site. The question of title of the vendor defendant need not be determined in a suit for specific performance at the instant of the purchaser. In view of the same the contention of the learned defendant’s counsel as regard to the nonjoinder of Srinivasa Rao is fatal to the case is not acceptable as said
Srinivasa Rao is neither necessary nor proper party to the suit. Therefore, the issue is answered in favour of plaintiff and against the defendant.
40. Issue No.4 : “Whether the plaintiff is entitled to specific performance of agreement of sale dt.09072000 as prayed for?”
The learned plaintiff’s counsel argued that the plaintiff could able to establish agreement of sale dated.09072000 is a valid and genuine document and the plaintiff further could able to establish there are no latches on the part of the plaintiff and therefore, the specific performance can be ordered. The learned defendant’s counsel argued that the plaintiff suppressed the material issues and approached the court with unclean hands. He further argued that the plaintiff took an unfair advantage from Ex
A3 and in view of the said two grounds the equatable relief of Specific Performance cannot be granted to the plaintiff.
25
41. It is true the relief of Specific performance is an equable relief and the court need not order specific performance even the plaintiff establishes the genuineness of the agreement and the court should exercise the discretion in a sound, reasonable and just manner in accordance with the circumstances and law. The grant of the decree rests in the discretion of the court and the plaintiff cannot claim the relief of specific performance in routine manner as a matter of right since the agreement of contract is proved to be true and enforceable. The court is under legal obligation to exercise such discretion in accordance with the sound principle of law and consider the facts and circumstances of the case.
42.The learned defendant’s counsel vehemently argued that where the plaintiff obtained the agreement with unfair advantage he is not entitled to the specific performance of the such agreement. The learned defendant’s counsel further argued that the relief of specific performance is an equatable relief and the person who seeks equatable relief must approach the court with clean hands and if he approached the court with unclean hands and suppressed the material issues he is not entitled to seek the equable relief. In order to substantiate the said argument reliance was placed on
Judgments of the Hon’ble Apex Court and Hon’ble High Court of A.P.
i) A.C. Arulappan Vs Smt. Ahalya Naik reported in AIR2001 Supreme Court 2783. In the above referred case, the Hon’ble Apex Court held the plaintiff is not entitled to decree of specific performance of contract on the ground the plaintiff had tried to take an unfair advantage over the defendant and in the said circumstances, within a short period of termination of the 1st contract the plaintiff got a second contract where under the defendant had to pay double of the amount of part consideration he received from the Plaintiff if the defendant failed to 26 perform her part of agreement. The Hon’ble Apex Court having found the unfair advantage to the plaintiff held the plaintiff is not entitled to the relief of specific performance.
ii) Malamma Vs Parmanand reported in 2004 ALT537wherein the Hon’ble
High Court held since the relief of specific performance is an equatable relief,
Plaintiff who comes to the court with unclean hands, or who makes false allegations in the plaint, or use false evidence could not be granted such relief. In the above referred case, the defendant caused a reply notice to the notice of the plaintiff but he stated in the plaint and evidence he had not received reply from the defendant and moreover, contended inference is to be drawn against the defendant as he failed to produce the office copy of the reply notice. Having found the suppression of the legal notice in the evidence and in the plaint averments, the
Hon’ble Court concluded the plaintiff is not entitled to equatable relief on the
score he approached the court with unclean hands.
iii) Tatavarthi Jagannadham (died) and another Vs Akkineni Radha
Krishna and another reported in Law Summary 1997(2) where in the
Hon’ble High Court held that the plaintiff made a false claim over the plot no.21
even the same is not subject matter of the agreement of sale and approached the court with unclean hands and it disentitles the plaintiff to seek the equatable relief of specific performance.
43.In the instant case, the defendant would not speak the unfair advantage and the suppression of the material facts to disentitle to seek specific performance.
Though the value of the suit schedule site is lesser at the time of the execution of ExA3 and the mere lesser consideration do not defeat the agreement. Where the time is essence of the contract and there is no consideration under the disputed agreement then only the relief can be denied. Just because, the defendant attempted to prove the 27 market value at the time of ExA3 transaction is not in tune with the consideration under ExA3 it does not defeat the recitals of ExA3 and renders it as unfair advantage.
Furthermore, as stated in issue no.1, the version of the plaintiff that the defendant sold the site to purchase the house in Nuzvidu but even prior to ExA3 transaction the defendant is having a house does not amount to suppression of facts. If a person intends to sell the properties with some purpose but later he changes the mind, it does not effect the transaction and the change of intention does not effect the right of the plaintiff purchaser.
44.Moreover, there is no recital in ExA3 to the effect the defendant sold site under ExA3 to purchase a house in Nuzvidu. The oral understandings and the mutual exchange of informations do not effect the document. There is no cogent evidence to defeat the recitals of ExA3. Further the subsequent raise in the price of the subject matter of the agreement of sale is not a relevant ground to refuse the specific performance. The grounds of unfair advantage must be spelled out from the recitals of
ExA3 agreement or from the circumstances brought on record. However, there are no such circumstances, except the alleged issue of inadequate consideration was brought on record. Even clause (a) to clause (c) of sub section 1 of sec.20 of Specific Relief Act explains when the relief can be refused and even the explanation to the said section shows the mere in adequate consideration is not a ground to refuse the relief to the plaintiff.
45.The learned plaintiff’s counsel further placed reliance on the Judgment in the case of Motilal Jain Vs Smt.Ramdasi Devi and others reported in AIR 2000 28
Supreme Court 2408. It was held the above referred Judgment that no specific terms or phraseology is needed to plead the readiness and willingness and the same can be gathered from the recitals of the document and the intention of the parties can also be gathered from the recitals of the document itself. Further, the circumstances must show the consideration is inequitable and the issue of unfair advantage would depend upon the circumstance at the time of execution of document and not upon subsequent events. No such circumstances are in the present suit to decline the relief to the plaintiff.
46.Further the intention of the parties can be gathered from the recitals of the document and no phraseology or specific terms are needed to mention in the pleadings as laid the above referred Judgment reported in AIR 2000 SC 2408. The recitals of ExA3 show the entire consideration was paid to the defendant and the possession of the site was delivered to the plaintiff at the time of execution of the Ex
A3, and the recitals show the intention of the parties to execute the regular sale deed as and when the plaintiff required the defendant to do it. Except the execution of the regular sale deed and its registration there is no other obligation on the part of the plaintiff to perform and the said execution of sale deed and its registration is to be performed from the end of the defendant. In the said circumstances, there are no reasons to non suit to the plaintiff for the relief of the specific performance.
47.Further, the facts of the cases in the above referred Judgments cited on behalf of the defendant are not applicable to the facts of the present case and the defendant could not establish there is a suppression of material facts and the plaintiff 29 approached the court with unclean hands, and the plaintiff took unfair advantage from the defendant under ExA3. From the above discussion, it is found the ExA3 is enforceable document, the plaintiff is in possession and enjoyment of the suit schedule site and nothing is to be performed from the end of the plaintiff. The evidence discloses that the defendant should come forward to execute the sale deed and register it in the name of the plaintiff in accordance with law. Therefore, the plaintiff is entitled to the relief of specific performance of agreement of sale dated.09072000 and accordingly, the issue is answered in favour of the plaintiff and against the defendant.
48. Issue No.5 : “Whether plaintiff is entitled to injunction as prayed for?”
The plaintiff came into possession of the suit schedule site under a legally enforceable document for consideration and issues – 1 to 4 are answered in favour of the plaintiff. The evidence on record establishes the plaintiff is in legal possession and enjoyment of the suit schedule site and the defendant is under legal obligation to
honour the ExA3 agreement of sale and execute regular sale deed in favour of the
plaintiff. Even under sec.53–A of Transfer of Property Act empowers the transferee for valuable consideration who is in possession of the properties under written agreement can use the same as a shield from the unauthorized dispossession from the ends of the vendor defendant. Further, the causes of action can be joined to avoid multiplicity of suits. If the injunction is not ordered and in the meanwhile if the defendant dispossessed the plaintiff, he would come to court again for recovery of possession and a new round of litigation would start. In view of the same and in view of the alleged attempt from the defendant, the plaintiff is entitled to protect the suit schedule site from the encroachment and dispossession. The plaintiff could able to establish the 30 cause of action and could make out grounds to order the permanent injunction.
Therefore, the plaintiff is entitled to the relief of permanent injunction as prayed for.
Accordingly, the issue is answered in favour of the plaintiff and against the defendant.
49. Issue No.6 : “To what relief?”
In the result, the Suit is decreed with costs for relief of Specific
Performance and Permanent Injunction as prayed for and the Defendant is directed to execute a Regular Sale Deed in the name of the Plaintiff within two months from the date of Decree on stamp papers supplied by the Plaintiff as required under Law and in case the Defendant failed to execute the above said Sale Deed as directed, the Plaintiff is at liberty to proceed as per Law. The Plaintiff is granted Permanent Injunction against the Defendant, his men, agents and followers from interfering with peaceful possession and enjoyment of the Plaintiff over the Suit Schedule Site.
Dictated to Stenographer Gr.III, transcribed and typed by him, corrected
and pronounced by me in open court, on this the 13th day of April, 2018.
Principal Junior Civil Judge,
Gannavaram. Appendix of evidence Witnesses examined:
Plaintiff:Defendant: PW1: Katuru Yedukondalu DW1 : Katuru Arjuna Rao
PW2 : Gampa Veeraraju Documents marked : For Plaintiff: Ex.A1 :Original Unregistered partition list dated.29012000 among the plaintiff and his brothers with endorsement of concerned District Registrar regarding the impounding of the document dated.05102017.
Ex.A2 :The defendant’s copy of partition list dated.29012000 i.e. copy of ExA1. (Marked subject to objection) 31
Ex.A3 :Original Unregistered agreement of sale dated.09072000 executed by defendant in favour of Plaintiff with endorsement of concerned District Registrar regarding the impounding of the document dated.05102017.
Ex.A4 :Office copy of legal notice dated 29122005 got issued to the Defendant by Plaintiff’s counsel.
Ex.A5 :Original postal acknowledgment dated.03012006.
Ex.A6:Reply notice dated.09012006 received from defendant.
Ex.A7:Original Possession certificate dated.17012006 issued by Secretary, Grama Panchayath Gannavaram in the name of Plaintiff.
Ex.A8:Original death certificate of Penumudi Nageswara Rao.
Ex.A9:Original electrical bill dated.28022005 in the name of Plaintiff.
Ex.A10: Original electrical bill dated.06092006 in the name of Plaintiff.
Ex.A11: Original electrical bill dated.09072007 in the name of Plaintiff.
Ex.A12: Original electrical bill dated.04102017 in the name of Plaintiff for service No.6511201002980.
Ex.A13: Original House tax receipt dated.14022007.
Ex.A14: Original House tax demand notice dated.22012008.
Ex.A15: Original House tax receipt dated.22112010.
Ex.A16: Photos (4Nos.) along with memory card
For Defendant: Ex – B1 Registration extract of relinquishment deed, dated.28112005 bearing document no.5392/2005 executed by me and my sons Subramaneswara Rao and Durga Prasad in favour of my other son Srinivasa Rao.
Ex – B2 Registration extract of sale deed dated.26041999 bearing document no. 835/1999 executed by Daruga Sakuntalamma and her sons in my favour.
P.J.C.J., GVM.