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IN THE COURT OF SENIOR CIVIL JUDGE AT SATHUPALLY
Dated this the 26th day of June, 2020
Present :Sri MOHD.AFROZ AKHTAR
Senior Civil Judge,
Sathupally
O.S.No.41 of 2010
Between: Sri Sai Rajyalaxmi Tiles Factory represented by Managing Partner Samayamanthula Venkata Satya Buchiraju @ Nani, S/o. Venkateswara Rao, Age: 50 yrs, Occ:Business, Native of Rajahmundry town of East Godavari District, R/o. Dammapeta village & mandal, Khammam District. …..…Plaintiff
And
1.K. Ramalingam, S/o. Late Seetha Ramaiah, Age: 55 yrs, Occ: Agriculture & business, R/o. Dammapeta village & mandal, Khammam District.
2.Kakkirala Venkateswara Rao, S/o. Late Seetha Ramaiah, Age: 52 yrs, Occ:Agriculture & business, R/o. Dammapeta village & mandal, Khammam District.
3.Jallipalli Pundareekakshudu, S/o. Satyanarayana, Age: 50 yrs, Occ: Agriculture & business, R/o. 140 SRT, A.P.H. colony, S.R. Nagar, Hyderabad.
4.Panduranga Jayalaxmi, W/o. Satyanarayana, Age: 50 yrs, Occ: House wife, R/o. Dammapeta village & mandal, Khammam District.
5.Kakkirala Visveswara Rao, S/o. Seetha Ramaiah, Age: 53 yrs, Occ:Agriculture & business, R/o. Dammapeta village & mandal, Khammam District.
6.Kakkirala Chakradhar Rao, S/o. Late Seetha Ramaiah, Age: 45 yrs, Occ: Agriculture & business, R/o. Near Yax Tailors, Ravi Petrol Bunk, Main Road, Sathupally Nagara Panchayath, Sathupally mandal, Khammam District.
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7.Kakkirala Ranganayakamma, W/o. Late Seetha Ramaiah, Age: 70 yrs, Occ: house wife, R/o. Dammapeta village & Mandal, Khammam District.
8.Seemakurthy Visalakshi, W/o. Keshava Rao, Age: 54 yrs, Occ: house wife, R/o. Near Post Office, Aswaraopeta village & Mandal, Khammam District.
9.Seemakurthy Bramaramba @ Leelavathi, W/o. Saibabu, Age: 45 yrs, Occ: House wife, R/o. Near Anjaneyaswamy temple, Aswaraopeta village & mandal, Khammam District.
10.Jallipalli Leelavathi, W/o. Late Narasimha Rao, Age:48 yrs, Occ: House wife, R/o. Near Vivekavardhani school, C/o. Gayathri Kiranam & General stores, Srinivasa Nagar, Khammam town & District.
11.Jallipalli Suresh, S/o. Narasimha Rao, Age: 25 yrs, Occ: Business, R/o. Near Vivekavardhani school, C/o. Gayathri Kiranam & General stores, Srinivasa Nagar, Khammam town & District.
12.Jallipalli Naresh, S/o. Late Narasimha Rao, Age: 22 yrs, Occ: Business, R/o. Near Vivekavardhani school, C/o. Gayathri Kiranam & General stores, Srinivasa Nagar, Khammam town & District.
……… Defendants.
This suit is coming up before me for final hearing in the presence of Sri P. Janaki Rama Rao, Advocate for the Plaintiff and of Sri K.Vijay Kumar (Jr), Advocate for Defendants No.1,5,6 & 8, Sri Bh. Srinivasa Reddy, Advocate for the defendants No.2, 4 to 7 and Sri M. Ajay Kumar, Advocate for the defendants No.3 and 10 to 12, upon perusing the material on record and after hearing the arguments, this Court made the following:
JUDGMENT
1.This is a suit for specific performance, seeking direction to the defendants to execute registered sale deed in favour of plaintiff pertaining to suit schedule property in pursuance of agreement of sale dated 15022003.
Plaintiff also seeks the relief of perpetual injunction, to restrain the defendants from interfering with the possession of plaintiff over the suit schedule property.
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2.The averments of the plaint, in brief, are that,
i)The plaintiff is a registered partnership firm under the name and style of Sri Sai Rajya Laxmi Tiles factory at Dammapeta village & mandal and it has been in the field of manufacture and sale of clay decorative tiles. Samayamanthula Venkata Satya Buchiraju @ Nani is the managing partner whereas Bala Tripura Sundari, who is the wife of S.V.S.
S.V.S. Buchi Raju and one Samayamanthula Krishna Kumari are the partners. Earlier plaintiff’s firm took lease of Sri Laxmi Ganapathi Tiles
Factory situated at Dammapeta village. Defendants No.1 to 6, one
Kakkirala Seetharamaih and Jallipalli Narasimha Rao are the partners of said Sri Laxmi Ganapathi Tiles Factory. K. Seetha Ramaiah died in the year 2005 leaving his wife, daughters and sons as his legal heirs and successors. Defendants N.1 to 5 and 6 are the sons, defendant No.7 is the wife, whereas defendants No.8 & 9 are the daughters of Late Kakkirala
Seetha Ramaiah.
ii)That another partner Jallipalli Narasimha Rao died in the year 2009 leaving behind his wife and sons. Defendant No.10 is the wife, whereas defendants No.11 & 12 are the sons of Jallipalli Narasimha Rao.
Plaintiff's firm obtained lease deed from Sri Laxmi Ganapathi Tiles Factory on 31121999 for a period of (5) years at a monthly lease amount of
Rs.8,701/. Plaintiff’s firm was inducted into possession of Sri Laxmi
Ganapathi Tiles Factory, Dammapeta and they started business under the name and style of Sri Sai Rajyalaxmi Tiles Factory Tiles Factory at
Dammapeta.
iii)That on 15022000 both parties entered into a deed of cancellation of lease and the same was registered. Again on 26042001 a lease deed was entered between plaintiff’s firm with the Managing Partner of Sri Laxmi
Ganapathi Tiles Factory, Dammapeta represented by K. Seetha Ramaiah 4 and the same was also registered. As per the terms of lease, initially it was for a period of (9) years commencing from 01042001 with an option of renewal for (2) more years. It is further averred that, the property of Sri
Laxmi Ganapathi Tiles Factory, Dammapeta is situated in the land out of
Sy.No.589/1 to an extent of Ac.400 containing 8 sheds, 3 furnaces, one chimney, 15 workers quarters, racks and frames 40,000, clay mixture1, heavy size plug mill cake polisher, revolving press1, hand press, Leyland engine generator, 50 HP motor1, 7.5 HP motor1, 3 HP submersible water motor1, revolving flat die sets3, ridge die set1, revolving ceiling set1 etc.,
It is clearly mentioned in the plaint schedule.
iv)It is further averred that, while so, the Managing partners of the firm namely Kakkirala Seetha Ramaiah offered to sell the above tiles factory to the plaintiff’s firm and after negotiations, defendants No.1 to 6, K.
Seetha Ramaiah and Jallipalli Narasimha Rao agreed to sell away the leased premises to the plaintiff’s firm, for a total consideration of
Rs.8,00,000/ and as agreed on 15022003 plaintiff’s firm paid Rs.8,00,000/ to the vendor and obtained possessory agreement of sale for the said property, and from 15022003 onwards, the plaintiff’s firm has been doing its business in the said premises as its rightful owner and possessor. As the leased premises was sold on 15022003, the lease was superceded by the said transaction. Plaintiff’s firm has been paying taxes to the
Grampanchayath as owner of the property.
v)It is further averred that, while so, plaintiff firm received caveat petitions filed by the first defendant herein before the Junior Civil Judge’s
Court, Sathupally and plaintiff was surprised for all the false and baseless allegations made in the caveat petition. Then the Managing partner of the plaintiff approached the defendants and questioned about the caveat petitions, but the first defendant replied negatively. Therefore, plaintiff got issued a legal notice on 29122009 to all the defendants and demanded 5 them to execute a registered sale deed pertaining to the suit schedule property. But the defendants neither came forward to register sale deed nor issued reply notice. Hence, suit for specific performance and for consequential relief of perpetual injunction.
3.Defendants No.1,3,8 to 12 filed written statement opposing the claim of the petitioner. It is further averred in the written statement that, the suit filed on behalf of Sri Sai Rajyalaxmi Tiles Factory Tiles Factory represented by its Managing partner is not maintainable since alleged agreement of sale dated 15022003 discloses that, S.V.S. Buchi Raju,
Vadakattu Radha and Samayamanthula Krishna Kumari are the alleged purchasers of the schedule property and as such said three partners are the proper and necessary parties. Therefore, suit is bad for misjoinder of Sri
Sai Rajyalaxmi Tiles Factory and nonjoinder of above mentioned three persons.
ii)It is further averred that, Laxmi Ganapathi Tiles Factory got title and possession only for Ac.220 gts., of land covered by Sy.No.589/1 of
Dammapeta village, but not Ac.400 as alleged in the plaint. The extent of land situated within the four boundaries mentioned in the plaint schedule, is Ac.220 gts. only but not Ac.400 and this fact is known to S.V.S. Buchi
Raju also. In fact Government of A.P. vide G.O.Ms.No.2699 RD dated 1706 1980 alienated an extent of Ac.220 gts., in favour of M/s. Laxmi Ganapathi
Tiles Factory, Dammapeta on payment of market value of Rs.1250/ per acre and on payment of market value, an extent of Ac.220 gts., was delivered possession to Laxmi Ganapathi tiles Factory on 17071980 under a cover of panchanama as per the proceeding of the then Tahasildar Vide
Rc.no.C6/4003/79 dated 16071980. Thus, Laxmi Ganapathi Tiles Factory is owner of Ac.220 gts., only and it is to the knowledge of S.V.S. Buchi Raju also. That after getting the land of Ac.220 gts., Laxmi Ganapathi Tiles 6
Factory was constructed in the said land consisting of two partners i.e.
Kakkirala Seetha Ramaiah and Jallipalli Narasimah Rao, who were having 60% and 40% share respectively. It is admitted in the written statement about Laxmi Ganapathi Tiles Factory was given on lease under registered lease deed dated 31121999 in favour of S.V.S. Buchi Raju, Vadakattu
Radha and Krishna Kumari for a lease period of five years on payment of monthly rent of Rs.8701/. It is also admitted that after execution of lease deed S.V.S. Buchi Raju and two other partners, took possession of Sri Laxmi
Ganapathi Tiles Factory and doing business. It is also admitted in the written statement about registration and cancellation of lease deed dated 15022000. It is further stated that, the plaint is clearly silent as to what circumstances prompted for cancellation of lease deed dated 31121999. It is stated that, in February, 2000, S.V.S. Buchi Raju informed the then partners of Laxmi Ganapathi Tiles Factory that, State Financial
Corporation refused to grant loan, if the lease is for a period of less than nine years and has requested to cancel lease deed dated 31121999 and requested to execute another lease deed for a period of nine years, for which, the then partners agreed. Accordingly a registered cancellation deed dated 15022000 was executed between parties of the lease deed dated 3112 1999. That at the time of preparing cancellation deed dated 15022000, it was noticed that the extent of land was wrongly mentioned as Ac.400 in the lease deed dated 31121999, instead of mentioning Ac.220 gts. It is further stated that, inspite of execution of registered cancellation deed, S.V.S. Buchi
Raju and two other partners continued to be in the possession and enjoyment of the Laxmi Ganapathi Tiles Factory by manufacturing tiles.
iii)It is further pleaded in the written statement that, at the time of execution of cancellation deed dated 15022000 S.V.S.Buchi Raju informed the then partners of Laxmi Ganapathi Tiles Factory, that he requires some more time for obtaining registered lease deed and requested the then partners to subscribe their signatures on blank stamp papers and 7 white papers, in order to protect his rights as lessee of Laxmi Ganapathi
Tiles Factory. That when these defendants expressed their doubt that if they subscribe their signatures on blank papers, there is every possibility of fabricating of documents by S.V.S. Buchi Raju, then the said S.V.S.Buchi
Raju informed these defendants and other partners that, he would give a blank paper from the letter pad of Sri Sai Rajyalaxmi Tiles Factory Tiles
Factory and if he (Buchi Raju) creates any document with the aid of signatures obtained by him from these defendants on blank stamp papers, in such a case, these defendants and other partners can utilize his signature on the blank letter pad of the firm to nullify fabricated documents, if any created by S.V.S. Buchi Raju. That by creating such confidence in these defendants, S.V.S. Buchi Raju obtained the signatures of these defendants and other partners on 15022000 on blank stamp papers and also on blank papers and delivered the blank letter pad containing his signature to these defendants. It is further averred that, subsequently on 26042001, S.V.S.
Buchi Raju obtained registered lease deed from Seetha Ramaiah, the
Managing Partner of Sri Laxmi Ganapathi Tiles Factory for a period of (9) years, with an option to renew for further two years. The said registered lease deed was obtained in the name of Sri Sai Rajyalaxmi Tiles Factory
Tiles Factory, Dammapeta. S.V.S. Buchi Raju used to pay agreed monthly rent to all the partners by obtaining vouchers till the end of December, 2009.
That the allegation that Seetha Ramaiah offered to sell the tiles factory to the plaintiff’s firm, that after negotiations defendants No.1 to 6, Seetha
Ramaiah and Jallipalli Narasimha Rao sold their premises to the plaintiff’s firm for Rs.8,00,000/ on 15022003 by executing a possessory agreement of sale and from the said date, plaintiff’s firm has been doing it business in the said premises as rightful owner, are denied.
iv)It is further averred that, these defendants are not at all partners of Sri Laxmi Ganapathi Tiles Factory and never offered to sell the 8 tiles factory to the plaintiff either on 15022003 or any other day, and no amount much less Rs.8,00,000/ was paid by the plaintiff to these defendants. That agreement of sale dated 15022000 was not executed by these defendants or other partners. That S.V.S. Buchi Raju created and fabricated the document dated 15022003 with the help of signatures obtained by him from these defendants and other partners on blank papers on 15022000. Thus, the alleged agreement of sale is a fabricated and an antedated document. It is further averred that, though the name given to the document dated 15022003 is an agreement of sale, but by construction of recitals of said document shows that, it is nothing but an outright sale deed and since the same did not contain proper stamp duty and devoid of registration, the document dated 15022003, is not maintainable in evidence. Since the document dated 15022003 amounts to an unregistered sale deed, the relief for specific performance is barred by time.
v)It is further averred that, the market value of the tiles factory consists of building and machinery would not be less than Rs.15,00,000/ by 15022003 and the market value of the land will not be less than
Rs.4,00,000/ per acre and the present market value for Ac.220 gts., would be about Rs.45,00,000/, apart from the value of building and machinery located therein. Thus, it is unconscionable that any prudent person would enter into such alleged improvident transaction. That for seeking the relief of specific performance, which is an equitable relief, plaintiff has to approach the court with clean hands, but the plaintiff approached the court by fabricating the document and by taking false plea. It is further averred that, registered notice dated 29122009 was received by these defendants.
It is further averred that, in December, 2009, these defendants demanded
S.V.S. Buchi Raju to enhance the monthly rent, for which, he did not agree and fabricated the document and got issued a registered notice. It is further averred that, at that time, when these defendants were contemplating to 9 send suitable reply, S.V.S. Buchi Raju came for settlement stating to abide by the decision of the elders and as such these defendants chosen one
Akkam Seetha Ramaiah, Simakurthy Venkateswwar Rao and Simakurthi
Kesava Rao as elders on their behalf. While so S.V.S. Buchi Raju chosen
Kakkirala Ramesh, Kakkirala Thatha Rao, and Dara Yugandher as elders on his behalf. The said elders convened panchayath on two or three occasions and tried to solve the dispute and as these defendants were pursing elders, they could not issue a reply notice. With these averments, it is prayed for the dismissal of the suit.
4.Defendants No.2, 4 to 7 filed written statement admitting the suit claim. These defendants admitted about defendants No.1 to 6, Seetha
Ramaiah, Jallipalli Narasimha Rao executed possessory agreement of sale in favour of plaintiff and that plaintiff firm has been paying necessary taxes as owner of the property and as sale was affected, the lease was automatically cancelled. These defendants also admitted about other averments of the plaint.
5.On basis of above pleadings, the following issues were framed by my learned predecessor.
1.Whether the plaintiff is entitled for the relief of directing the defendants to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property?
2.Whether the plaintiff is entitled for grant of consequential relief against the defendants in respect of the suit schedule property?
3.Whether the suit is bad for nonjoinder of necessary parties?
4.To what relief?
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6.During the course of trial, Managing partner of the firm namely
S.V.S. Buchi Raju was examined as PW.1 and also examined N. Nageswara
Rao and A. Sekhar who are said to be the scribe and attestor of the agreement of sale, as PW.2 & PW.3. Ex.A1 to Ex.A11 were marked towards documentary evidence on behalf of plaintiffs.
7.Defendant No.3, who is admitting the suit claim, was examined as
DW.1. Defendant No.1 who is the contesting defendant, was examined as
DW.2 and he also examined Akkam Sitharam as DW.3. Ex.B1 to Ex.B7 were marked on behalf of defendants towards documentary evidence.
8.Though contesting defendant No.1 also filed affidavits in lieu of chief examination of witnesses namely S. Venkateswar Rao, S. Kesava Rao and
K. Durga Prasad as DW.4 to DW.6, however, their evidence affidavits were eschewed at the request of the counsel for contesting defendant No.1.
9.After the completion of trial, arguments at length were heard and written arguments were also filed on behalf of both parties. This court carefully considered the submissions of the either side and perused the material available on record and now proceeds to advert to the rival pleadings and the evidence so adduced.
10. ISSUES No.1 & 2:
It is relevant to state the admitted facts. The fact that plaintiff’s firm obtained lease of Sri Laxmi Ganapathi Tiles Factory under registered sale deed dated 31121999, which is marked Ex.A1, is admitted even by the contesting defendants. It is also admitted about cancellation of the same under Ex.A2. The contesting defendants also admitted about execution of another lease deed dated 26042001, which is marked as Ex.A3. Though defendants No.3,10 to 12 also filed written statement along with contesting 11 defendant No.1denying the suit claim, however at subsequent stage of the case i.e. from the beginning of the trial, they did not cross examine the plaintiffs witnesses and they admitted the claim of the plaintiff and in fact at the stage of arguments, defendants No.3, 10 to 12 filed written arguments admitting the claim of the plaintiffs. Thus, defendants No.1, 8 & 9 are only contesting defendants and among them, defendant No.1, as DW.2, gave his evidence and other two contesting defendants No.8 & 9 did not enter into the witness box to speak their case on oath and that a perusal of evidence of
DW.2 (Defendant No.1) goes to show that he was giving evidence only on his behalf and not on behalf of defendants No.8 & 9.
11.There is no denial from defendant No.1 about his signature appearing on the agreement of sale (Ex.A6), however, it is the contention of defendant
No.1 that, after cancellation of lease deed vide Ex.A2, S.V.S. Buchi Raju sought time for obtaining another registered deed and during that time
S.V.S. Buchi Raju requested defendants No.1 to 6, Seetha Ramaiah and
Jallipalli Narasimha Rao to subscribe their signatures on blank stamp papers and white papers to protect his interest as lessee of Laxmi
Ganapathi Tiles Factory and that when defendants No.1 to 6, Seetha
Ramaiah and Jallipalli Narasimha Rao raised doubt to the effect that the said S.V.S. Buchi Raju may misuse such blank signed stamp papers and may create any document, to which S.V.S. Buchi Raju in turn gave a blank signed letter head of Sri Sai Rajyalaxmi Tiles Factory Tiles Factory and told partners of Laxmi Ganapathi Tiles Factory that they can utilize the said blank letter head signature to nullify any document, if at all created by
S.V.S. Buchi Raju, and that believing the version of S.V.S. Buchi Raju, partners of Laxmi Ganapathi Tile Factory subscribed their signatures on blank stamp papers and later by misusing the same, S.V.S. Buchi Raju created the alleged agreement of sale marked as Ex.A6. Such pleading of defendant No.1 appears to be improbable for the reason that, both the 12 parties to the suit are belonging to the business community and very well knows the consequences of signing such blank stamp papers. That apart, the other executants of Ex.A6 i.e. Defendants No.2,3,4 to 7, 10 to 12 are admitting about their executing the agreement of sale Ex.A6. Even then now this Court proceeds to see whether the plaintiff could rebut such contention of defendant No.1.
12.To prove the genuinity or otherwise of Ex.A1, apart from examining himself as PW.2, the managing partner of plaintiff firm, the scribe and attestor of Ex.A6 Agreement of sale were examined as PW.2 & PW.3. The evidence of PW.2 & PW.3 is very much consistent with regard to the material particulars of the transaction mentioned in Ex.A6. Both of them have categorically deposed even in their cross examination that the transaction covered by Ex.A6 agreement of sale, took place in a Cable
Network Office at Dammapeta. PW.2 scribe has specifically told about his scribing the document and PW.3, the attestor consistently stated about his witnessing the transaction. PW.3 attestor stated about the presence of all the executants including defendant No.1 herein and he also stated that the sale consideration of the transaction was Rs.8,00,000/. Both of them have categorically deposed that, the transaction was for Ac.400 of land in
Sy.No.581/1. Though PW.2 & PW.3 were cross examined at length by the counsel for the defendant No.1, however nothing worthwhile could be elicited in their cross examination and their version withstood the test of such cross examination.
13.Thus, plaintiff has produced the positive evidence of PW.2 & PW.3 to rebut the contention of defendant No.1 that S.V.S. Buchi Raju obtained their signatures on blank stamp papers as security. That apart, except his self serving oral testimony in this regard, defendant No.1 did not examine any other independent witnesses on the said point. The only other independent 13 witness examined by defendant No.1 is DW.3, and the evidence in chief examination affidavit of DW.3 goes to show that, he came to the Court mainly to speak about the alleged compromise talks which were said to have been held between the parties, inasmuch as DW.3 deposed that, some disputes arose between both the parties with regard to lease amount and for settlement of such issue, both the parties approached him and other elders and they got convened panchayath. DW.3 further deposed that in the said panchayath, plaintiff accepted to pay due lease amount. Perusal of written statement of defendant No.1 shows that, it is pleaded in para No.16 of written statement that, after receiving reply notice dated 29122009 Ex.A9,
S.V.S. Buchi Raju approached the defendants and came forward for settlement. Thus, purpose of the evidence of DW.3 is only with regard to the alleged panchayath said to have been convened by him and others to settle the dispute between the parties. However, the evidence of DW.3 is not in support of the contention of defendant No.1 that Ex.A6 was obtained by
S.V.S. Buchi Raju as security by obtaining signatures of partners of Laxmi
Ganapathi Tiles Factory on blank stamp papers. Thus, except his self serving testimony, there is no other evidence to buttress his contention in denial of Ex.A6. On the other hand, there is abundant evidence by way of admission from the other executants of Ex.A6 i.e. about the contents of
Ex.A6, defendants No.2,3,4 to 7 and the legal heirs of the other executants
Jallipalli Narasimha Rao i.e. Defendants No.10 to 12 admitting the claim of plaintiff. As rightly argued by the learned counsel for the plaintiff, except defendant No.1 all the executants of Ex.A6 are admitting the contents of
Ex.A6 and all of them have no objection to execute registered dale deed in favour of plaintiff in respect of suit schedule property. This Court finds force in such contention. Even the real brothers and mother of contesting defendant No.1 i.e. defendants No.2, 5 to 7 who are the sons and wife of
Seetha Ramaiah, are admitting the suit claim. Further, defendants No.10 to 12 being the legal heirs of Jallipalli Narasimha Rao and defendant No.4 being the mother and defendant No.3 being the brother of Jallipalli 14
Narasimha Rao are also admitting the suit claim and they are ready to execute the sale deed. It is relevant to note here that, even as per the pleadings of defendant No.1, Seetha Ramaiah was having 60% share in
Laxmi Ganapathi Tiles Factory and Jallipalli Narasimha Rao was having 40% share. Defendants No.8 & 9 being daughters of Seetha Ramaiah though filed written statement along with defendant No.1 opposing the suit claim, however as stated earlier, they did not enter into the witness box to speak their case on oath and defendant No.1, as DW.2 admitted in his cross examination that he is giving evidence only on his behalf and not on behalf of other defendants, in which event, the pleas taken by defendants No.8 & 9 in their written statement, remained bald and unsubstantiated pleas and hence their such pleas raised in the written statement against the claim of plaintiff cannot be considered.
14.Coming to the another contention raised by defendant No.1 with regard to the extent of schedule property. It is the case of the defendant
No.1 that, the extent of property over which Sri Laxmi Ganapathi Tiles
Factory is located, is only Ac.220 gts., but not Ac.400 as stated in the plaint schedule and in support of his contention, defendant No.1 got marked Ex.B1 to Ex.B5 to show that, Government alienated only an extent of Ac.220 gts., in favour of Sri Laxmi Ganapathi Tiles Factory but not Ac.400.
15.In this regard, it is significant to refer to the cross examination of defendant No.1, DW.2. In his cross examination, defendant No.1 as DW.2 admitted about his filing a caveat petition against one Krishna Kumari, who is said to be one of the partners of plaintiff’s firm and since DW.2 admitted about his failing of caveat petition before Junior Civil Judge, SAthupally in the year 2009, the same is marked as Ex.A11. When the contents of caveat petition and the schedule of property mentioned in the caveat petition, marked as Ex.A11 is confronted to DW.2 (defendant No.1), he admitted that, 15 in the said caveat petition filed by him, he mentioned the schedule property of Sri Laxmi Ganapathi Tiles Factory to be situated over an extent of
Ac.400 in Sy.No.589/1 of Dammapeta village. DW.2 also admitted that in
Ex.1 & Ex.A2 i.e. lease deed and cancellation deed, the extent is mentioned as Ac.400 only. DW.2 further went on to admit in his cross examination, I quote “ It is true that, since the actual land existing is Ac.400 only,
we mentioned the said extent in Ex.A6 and my version in chief that,
by mistake we mentioned as Ac.400, is not correct.”
16.Thus, in view of the admission on the part of defendant No.1 about availability of an extent of Ac.400, the contention of defendant No.1 that government alienated only Ac.220 gts., in favour of Sri Laxmi Ganapathi
Tiles Factory, does not hold much water.
17. So far as the contention of defendant No.1 that, suit is being barred by limitation from the date of 15022003, is concerned, though there is no specific plea raised or issue framed, this Court intends to clarify the said point also. As discussed earlier by adducing the positive evidence of PW.2 &
PW.3, coupled with the admission by other executants of Ex.A6, the plaintiff could prove that, it is enjoying the schedule property in its own capacity as rightful owner. As per Section 5 of Limitation Act, period of (3) prescribed for filing the suit required to be counted from the date fixed by the parties in the agreement, for performance or if no such date is fixed when the plaintiff has noticed that performance is refused by the defendants. In the instant case, even as per DW.2 (defendant No.1) he filed caveat petitions before the
Junior Civil Judge’s Court, Sathupally and dispute arose thereafter.
Therefore, the contention of the plaintiff that, it is only after receiving the copies of caveat petition (Ex.A11) in the year 2009, plaintiff came to know about the refusal of the performance or denial of execution of Ex.A6 by defendant No.1 and the suit has to be filed within (3) years period therefrom 16 and since the suit is filed in the 2010 itself, the suit is well within the period of limitation. Furthermore, the concept of readiness and willingness on the part of the plaintiff does not arise for the reason that, as per the case of plaintiff, total consideration of Rs.8,00,000/ was paid on the date of Ex.A6 itself and this is also admitted by the other executants of Ex.A6, except defendant No.1.
18.Further all the defendants including the contesting defendant No.1 admitted that since the date of execution of lease deed and thereafter since the date of agreement of sale Ex.A6, the plaintiff has been in possession of the suit schedule property.
19.Having regard to the above said discussion, this Court holds that, plaintiff has proved the due execution of Ex.A6 Agreement of sale and as such plaintiff is entitled for the relief of specific performance. Since the possession of plaintiff over the plaint schedule property is also not in dispute and as defendant No.1 is interfering in his possession, plaintiff also entitled for consequential relief of perpetual injunction as prayed for. Issues No.1 & 2 are answered accordingly in favour of the plaintiff.
20. ISSUE No.3:
It is the case of defendant No.1 that, S.V.S. Buchi Raju is the
Managing Partner of Laxmi Ganapathi Tiles Factory and there are two other partners namely Vadakattu Radha and Krishna Kumari, who are not made as parties and hence suit is bad for nonjoinder of necessary parties.
Perusal of cause title of the plain show that, plaintiff is “Sri Sai Rajyalaxmi
Tiles Factory Tiles Factory represented by the Managing partner S.V.S.
S.V.S. Buchi Raju. Thus suit is filed by the firm represented by managing partner, but not by the managing partner in his individual capacity. Even
Ex.A6 agreement is also in favour of firm, but not in favour of the firm, but 17 not in favour of individual partners and in the event of decreeing the suit, it is the firm only viz. Sri Sai Rajyalaxmi Tiles Factory Tiles Factory, who is entitled for specific performance being represented by its Managing Partner, therefore, it cannot be said that, suit is bad for nonjoinder of necessary parties. Accordingly this issue is answered in favour of the plaintiff and against the defendant.
21. ISSUE No.4:
Having regard to the above said discussion and since issues No.1 & 2 are answered in favour of plaintiff, this court holds that, plaintiff is entitled for the relief of specific performance and also for the consequential relief of perpetual injunction.
22.In the result, suit is decreed with costs and all the defendants are directed to execute registered sale deed in favour of plaintiff’s firm within a period of two months from the date of receipt of copy of this judgment, failing which plaintiff’s firm is at liberty to obtain the sale deed through process of law by approaching the court.
Dictated to GradeII Stenographer, transcribed by her, corrected and
pronounced by me in the Virtual Court on this the 26th day of June, 2020.
SENIOR CIVIL JUDGE,
SATHUPALLI.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:For Defendants: PW.1 : S.V.S. Buchi RajuD.W.1 : K. Venkateswara Rao
PW.2 : N. Nageswara RaoD.W.2 : K. Ramalingam
PW.3 : A. SekharD.W.3: A. Sitharam
D.W.4: S. Venkateswara Rao
D.W.5: S. Kesava Rao
D.W.6: K. Durga Prasad 18
EXHIBITS MARKED
For Plaintiff:
Ex.A.1 : Registered Lease Deed dated 31121999
Ex.A.2 : Lease cancellation deed dated 15022000
Ex.A.3: Lease Deed dated 26042001.
Ex.A.4: Certificate of registration of Firm issued by Registrar dt: 29022000 Ex.A.5: VAT Registration certificate dated: 31032010.
Ex.A.6: Agreement of sale dated 15022003.
Ex.A.7: House tax receipts (36 in number)
Ex.A.8: Attested copy of notice under Nala Act.
Ex.A.9: Office copy of legal notice by plaintiff
Ex.A.10: served postal acknowledgements (12 in number).
Ex.A.11: Registered postal cover by Krishna Kumari
For Defendants:
Ex.B1: Proceedings copy of GO.Ms.No.2699 dated 17061980.
Ex.B2: Memo issued by Tahasildar dated 16071980.
Ex.B3: Certificate issued by Tahasildar, Aswaraopeta dated 01091980.
Ex.B4: Panchanama prepared by Tahasildar, Sathupally dated 17071980.
Ex.B5: Form C issued by Registrar of Firms dated 05121979.
Ex.B6: Blank letter of Sri Sai Rajyyalakshmi Tiles Factory, Dammapeta with signature of partner.
Ex.B7: EC issued by SubRegistrar, Kothagudem.
SENIOR CIVIL JUDGE,
SATHUPALLI.