IN THE COURT OF THE VII JUNIOR CIVIL JUDGE: CITY CIVIL COURT:
HYDERABAD.
TUESDAY DATED THIS THE 25th DAY OF MARCH, 2014
PRESENT: SMT N.ROJA RAMANI,M.A., L.L.M,
VII JUNIOR CIVIL JUDGE.
O.S.No.2771 of 2011
Between: C.Pochaiah S/o Late C.Kondaiah Aged about : 56 years, Occ : Service R/o 8-1-105, Shaikpet Village, Golconda
Post, Hyderabad .. Plaintiff
And
1. K.Narsimha Reddy S/o Late Pochi Reddy Aged about:45 years, Occ : Govt. Employee BSNL 2.K.Manik Reddy S/o Late Pochi Reddy Aged about : 29 years, Occ : Private Service 3.K.Mohan Reddy S/o Late Pochi Reddy Aged about : 26 years, Occ : Political Leader
4. K.Raghava Reddy S/o W/o Late Pochi Reddy Aged about : 24 years, Occ : Real Estate Business 5.Smt.K.Laxmamma W/o Late Pochi Reddy Aged about : 65 years, Occ : Housewife
All are R/o H.No.8-1-136/A/1, Shaikpet Village
Golconda Post, Hyderabad .. Defendant
This suit is coming on this day before me for final hearing on 18-03-2014 in the presence of Sri.A.Keshava Reddy, Advocate for plaintiff and of Sri.Aakula Srinivas, Advocate for Defendant No.3 Defendants No.1,2 4 and 5 remained exparte and the matter having stood over for consideration till this day this court delivered the following:
J U D G M E N T
This suit is instituted by the plaintiff against the defendants under
Order VII Rule 1 & 2 of CPC R/w Section 26 of CPC with a prayer to grant perpetual injunction in favour of the plaintiff and against the defendant by restraining the defendants and their henchmen permanently from their illegal alienation of the suit schedule property to the third parties and to >2< O.S No.2771/2011 direct the defendants to execute the register sale deed in respect of open plot in Sy. No.343 and 344 Admeasuring 200 sq yards situated a Maruthi
Nagar, Shaikpet Village and Mandal, Golconda Post, Hyderabad i.e all that the open plot in Sy. No.343 and 344 Admeasuring 200 SQ yards situated at
Maruthi Nagar, Shaikpet Village and Mandal, Golconda Post, Hyderabad which is bounded by : North: Well and 15 Feet wide Road, South :
Neighbour's House 8-1-136/A/149, East: Road, West : Neighbour's House 8-1- 136/A/1/2 and to award costs of the suit.
2.The brief averments in the plaint are that the plaintiff purchased open land in survey No.343 & 344 admeasuring 200 sq yards, Maruthi Nagar,
Shaikpet Mandal from K.Pochi Reddy S/o Linga Reddy, who is the father of defendants No.1 to 4 and husband of Defendant No.5 under a Notarized agreement of sale dt.27-07-1999 by paying total sale consideration of
Rs.48,000/- and the possession was delivered, since then he is in possession and enjoyment of suit schedule property. During the lifetime of
K.Pochi Reddy, the plaintiff approached for registration of document, as he intended to construct the house in that open plot. The first defendant, who signed as a attestor on the agreement of sale, was present at the time of execution of agreement of sale and also at the time of delivery of physical possession of suit plot. The Defendants No.1 to 4 and their father dogged the mater on one or another pretext. Again on 21-08-2011 the plaintiff approached the defendants with a request to execute registered sale deed in his favour, as he intended to construct a building in that plot. But, the defendants did not respond, as such he got issued legal notice dt.2-9-2011.
The same was received by the defendants, but they have not given any reply. Then they hatched a plan to dispose the suit plot and came upon to the suit plot alongwith the purchasers on 25-09-2011 to alienate the suit >3< O.S No.2771/2011 plot by receiving the sale consideration from the third parties. Therefore, he prayed to direct the defendants to execute the registered sale deed in his favour in respect of suit schedule property and to restrain the defendants not to alienate the suit schedule property to the third parties. Hence the suit.
3After receiving the summons from the court, the defendant No.3 appeared before the court through his counsel and filed a detailed written statement and Defendants No.1, 2, 4 & 5 remained exparte. The Defendant
No.3 in his written statement denied all the averments in the plaint. He submitted that his father while undergoing treatment expired on 15-09-2000 and he was sick since 1997, as such there is no possibility of execution of agreement of sale in favour of the plaintiff and also delivery of possession.
He further submitted that the plaintiff fabricated the agreement of sale by making several corrections, alterations in respect of survey numbers, boundaries and forged the signatures of his father late K.Pochi Reddy and the first defendant. The plaintiff never approached his father and the first defendant who is his elder brother for execution of registration of sale deed in his favour. They never received any legal notice got issued by the plaintiff and they never went upon to the suit schedule property. The claim of the plaintiff is false, only with a malafide intention, filee the present suit by fabricating the agreement of sale with the forged signature of K.Pochi Reddy and first defendant. The suit of the plaintiff is barred by limitation as the agreement of sale was executed on 27-07-1999 and the present suit was filed in the month of September, 2011. The plaintiff has not paid proper court fees and the plaintiff approached the court with unclean hands seeking the relief of Specific Performance of Contract by producing forged and fabricated documents. Therefore, he prayed to dismiss the suit with exemplary costs.
>4< O.S No.2771/2011 4.Basing on the pleadings, the following issues are settled
1. Whether the father of D1 to D4 entered into agreement of sale with the plaintiff and sale agreement dt.27-07-1999 is valid and binding on the defendants?
2. Whether the plaintiff is in possession of suit schedule property?
3. Whether the plaintiff is entitle for relief of perpetual injunction against D1 to D5?
4. To what relief? Subsequently, at the stage of arguments an additional issue was framed
Additional Issue :
1. Whether the suit of the plaintiff is barred by limitation?
For the convenience sake the following issues are arranged in chronological order
1. Whether the father of D1 to D4 entered into agreement of sale with the plaintiff and sale agreement dt.27-07-1999 is valid and binding on the defendants?
2. Whether the plaintiff is in possession of suit schedule property?
3. Whether the plaintiff is entitle for relief of perpetual injunction against D1 to D5?
4. Whether the suit of the plaintiff is barred by limitation?
5. To what relief?
5. During the trial, plaintiff got filed chief evidence affidavit as Pw1 and exhibited Ex.A1 to A4 and got filed chief evidence affidavit of
G.Ganeneshwar as Pw2. After closure of the plaintiff’s side evidence, the defendant No.3 got filed his chief evidence affidavit as Dw1 and exhibited
Ex.B1 to B6.
6. Heard both sides
7. Issue No.1 : Whether the father of D1 to D4 entered into agreement of sale with the plaintiff and sale agreement dt.27-07-1999 is valid and binding on the defendants?
>5< O.S No.2771/2011 8(a) Under Section 16 of Specific Relief Act : Specific performance of contract cannot be enforced in favour of a person. (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.
Section 20 of the Specific Relief Act. 1963 provides for the discretion as to decreeing specific performance Section 20(1) envisages as follows : “ The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
Sub -Section (2) sets out the situations in which the Court may refuse specific performance : The following are cases in which the Court may properly exercise discretion not to decree specific performance :
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant
(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff or
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
“Sub -Section (3) of Section 20 says as follows : “The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequences of a contract capable of specific performance.
“Section 16 would deal with the personal bars to relief. It says that “Specific performance of a contract cannot be >6< O.S No.2771/2011 enforced in favour of a person (a)..................................
(b) who has become incapable of performing or violates any essential terms of the contract that on his part remains to be performed or acts in fraud of the contract, or willfully acts at variance with or in subversion of the relation intended to be established by the contract or
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. Other than terms the performance of which has been prevented or waived by the defendant.
Explanation : For the purpose of clause (c) : (i)...................
(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”
The above provisions would make it clear that the jurisdiction of the court is purely discretionary. Merely because the party asks for the relief of Specific performance and it is lawful to do so, the Court is not bound to grant the said relief. The discretion of the court must be sound and reasonable. While dealing with the relief of specific performance, the court shall take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract.
9. Under Section 101 of Indian Evidence Act, whoever desires any court, to give Judgement, as to any legal right or liability dependent on the existence of facts which they asserts, must prove that those facts exist.
10.Therefore, the plaintiff has to perform his part and also has to be ready and willing to perform his part of the contract. As the plaintiff approached the court seeking Specific Performance of Contract, he has to adduce cogent and consistent evidence to support and substantiate his contention in order to prove that he was ready and willing to perform the contract.
11.Pw1 in his chief evidence affidavit averred on the same lines as he averred in his plaint. He deposed that the plaintiff purchased open land in survey No.343 & 344 admeasuring 200 sq yards, Maruthi Nagar, Shaikpet >7< O.S No.2771/2011
Mandal from K.Pochi Reddy S/o Linga Reddy, who is the father of defendants No.1 to 4 and husband of Defendant No.5 under a Notarized agreement of sale dt.27-07-1999 by paying total sale consideration of
Rs.48,000/- and the possession was delivered, since then he is in possession and enjoyment of suit schedule property. During the lifetime of
K.Pochi Reddy the plaintiff approached for registration of document, as he intended to construct the house in that open plot. The first defendant, who signed as a attestor on the agreement of sale was present at the time of execution of agreement of sale and also at the time of delivery of physical possession of suit plot. The Defendants No.1 to 4 and their father dogged the mater on one or another pretext. Again on 21-08-2011 the plaintiff approached the defendants with a request to execute registered sale deed in his favour, as he intended to construct a building in that plot. But the defendants did not respond, as such he got issued legal notice dt.2-9-2011 and the same was received by the defendants, but they have not given any reply. Then, they hatched a plan to dispose the suit plot and came upon to the suit plot alongwith the purchasers on 25-09-2011 to alienate the suit plot by receiving the sale consideration to the third parties. Therefore, he prayed to direct the defendants to execute the registered sale deed in his favour in respect of suit schedule property and to restrain the defendants not to alienate the suit schedule property to the third parties.
12.In support of his contention he exhibited Ex.A1 to A4, Ex.A1 is the office copy of legal notice, Ex.A2 is the postal receipts (5 Nos), Ex.A3 are the acknowledgment cards (5 Nos), Ex.A4 is agreement of sale dt.27-07-1999
13.During the cross examination of Pw1, it was elicited that the copy of the Ex.A4 was served on the defendant. The photostate copy which is in >8< O.S No.2771/2011 the custody of the counsel for the defendants is not the copy served by him.
The first defendant obtained the photostate copy on the date of execution of Ex.A4. On the date of execution of Ex.A4, G.Gyaneshwar i.e Pw2 came to their and furnished the correct survey numbers, as such the survey numbers were incorporated in the Ex.A4 by the father of Defendants No.1 to 4 i.e
K.Pochi reddy and defendant No.1 with the help of typist. but they have not signed at the places of corrections in Ex.A4. There are about 15 to 20 houses near the suit schedule property by the time of execution of Ex.A4.
K.Pochi Reddy died in the year 2000. He has not got issued any legal notice to the legal heirs of Pochi Reddy in the year 2000, but he approached them with the elders of the locality, with a request to execute sale deed in his favour. He has not taken any any action against the legal heirs of Pochi
Reddy within three years from the date of his death or from the date of execution of Ex.A4. The property was partitioned among the brothers of the
Pochi Reddy. Thereafter, Pochi Reddy executed Ex.A4 in his favour. The suit schedule property is in his possession. He has not obtained NOC from the concerned authorities and any permission from the concerned authorities to show that K.Pochi Reddy is the owner of the property and all the defendants are residing in the same address.
He requested to Defendants No.2 to 5 at the time of execution of sale agreement but gave a reply stating that they are minors. K.Pochi Reddy did not issue any receipt after receiving the sale consideration from him.
The entire sale transaction was taken place in the presence of the defendants in their house. He does not know whether the neighboring plot owners filed any Writ Petition before the Hon'ble High Court of Andhra
Pradesh and obtained stay against the ULC proceedings. He has not received any notice from the MRO. The executant and the witnesses signed on Ex.A4 >9< O.S No.2771/2011 after all the corrections and alterations were made in Ex.A4. He, himself,
Ashok, Pochi Reddy, Narsimha Reddy signed on Ex.A4 prior to inserting the house number in Ex.A4. G.Gnaneshwar i.e Pw2 who is one of the attestor to
Ex.A4 signed on Ex.A4 after inserting the house numbers of neighbours plots on Ex.A4. During the lifetime of K.Pochi Reddy he did not got issue any legal notice, but be requested him orally on several times. Pochi Reddy and first defendant signed on the plan annexed to the Ex.A4. The plot number were not mentioned in the plan. There is no mention about the joint ownership of Pochi Reddy, Laxma Reddy, Kamallamma and Narsamma over the property acquired by them under the patta.
14.Pw2, who is one of the attesting witness of Ex.A4, supported and corroborated the evidence of Pw1 in all aspects. The plaintiff and defendants are hails from his villager. The plaintiff purchased the suit schedule property from K.Pochi Reddy, who is father of the defendants No.1 to 4 and husband of Defendant No.5 under Ex.A4 by paying total sale consideration of Rs.48,000/-. At the time of sale transaction he was present. On 27-07-1999, at the request of the plaintiff he went to
Gruhakalpa Bhavan, Nampally, Opposite Gandhi Bhavan, Hyderabad. After going through the agreement of sale he noticed that the survey numbers were wrongly mentioned . The he got corrected the survey number and also the other mistakes in the said agreement of sale. One G.Ashok signed as witness K.Pochi Reddy, first defendant and plaintiff signed on the document in his presence. Thereafter, the document was attested by Notarized
Advocate. Since then the plaintiff is in possession and enjoyment of the suit schedule property. K.Pochi Reddy died in the year 2000. Then he alongwith the plaintiff approached the defendants to execute the registered sale deed, as the defendants did not come forward, the plaintiff filed the suit.
>10< O.S No.2771/2011
15.During the cross examination of Pw2, it was elicited that he signed on Ex.A4, immediately after typing the same and he has not signed on the photostate copy which was shown to him by the counsel for the defendants and there are some corrections in respect of survey numbers in
Ex.A4. K.Pochi Reddy, who is the father of the Defendants No.1 to 4 is his neighbour. At the time of execution of Ex.A4, Mohan Reddy was aged about 18 years and the defendant No.1 was an employee working with him in the same office. He was not present at the time of transaction and payment of sale consideration. The entire area in Maruthi Nagar belongs to Pochi
Reddy, Laxmamma, Narsimha Reddy, Janga Reddy and Kamalamma. There are about 500 to 600 plots in Maruthi Nagar. Mohan Reddy i.e Defendant
No.3 got constructed a wall by closing the entry into the plot. Pochi Reddy suffered from heart problem for the period of 4 years prior to his death in the year 2000.
16.It is the contention of the defendant No.3 that his father while undergoing treatment expired on 15-09-2000 and he was sick since 1997, as such there is no possibility of execution of agreement of sale in favour of the plaintiff and also delivery of possession. The plaintiff fabricated the agreement of sale by making several corrections , alterations in respect of survey numbers, boundaries and forged the signatures of his father late
K.Pochi Reddy and Defendant No.1 on Ex.A4. The plaintiff never approached his father and the first defendant, who is his elder brother for execution of registration of sale deed in his favour. They have not received any legal notice got issued by the plaintiff and they never went upon to the suit schedule property. The plaintiff approached the court with unclean hands seeking the relief of Specific Performance of Contract by producing forged and fabricated documents.
>11< O.S No.2771/2011
17.In support of his contention he exhibited Ex.B1 to B6, Ex.B1 is the original family member certificate dt.1-1-2001, Ex.B2 is the photographs 5 in number alongwith CD, Ex.B3 is the electricity bill and receipt 2 in number,
Ex.B4 is the order in Writ Petition No.8414/2001 dt.6-7-2005, Ex.B5 is the order in W.P No.8610/2001 dt.5-12-2008, Ex.B6 is the Order in W.P
No.8962/2001 dt.5-11-2008.
18.During the cross examination of Dw1, it was elicited that the first defendant is an employee in BSNL . His father and elder brother of his father were the owners of land to an extent of 7 Acres 6 guntas in Survey
No. 328, 329, 343, 344. His father purchased the said property from
Ramulamma, Kapu Kamalamma and Narsamma. He alongwith his brother, sister and mother and their tenants are residing in the same premises.
He further admitted that the house number mentioned in the legal notice is the house number of their house, where they are residing at present. There are several houses in that locality with the same house number and he is ready to produce the documentary proof. He received the summons from the court on the same address and the address mentioned in the legal notice. His father and elder brother of elder brother of his father sold away the the entire 7 Acres 6 guntas of land “by leaving one plot and their residential house which are still in their possession”. There are sale deeds in respect of sale of some plots. He further admitted that he is not aware about the particulars of sale transactions and mode of the sale transactions between his father and his purchasers. There are no house numbers allotted to the open plot. He further admitted that the plaintiff filed suit in respect of suit schedule property, which is a open plot. The
Revenue Department did not issue any notice for demolition of unauthorized >12< O.S No.2771/2011 and illegal constructions. The plaintiff did not receive any notice from the revenue authorities. The house number mentioned in Ex.A4 is their house number. His father did not sign on Ex.A4, as he was sick. He cannot produce any document executed by his father. As per Ex.B1 issued in the year 2001 his age shown as 27 years, whereas he has mentioned in the chief evidence affidavit as 36 years. Even though his family is a joint family they are residing in separate portions in the same premises. The elder brother of his father died, but he do not remember the date of death, but it was prior to the death of his father. After the death of his father, he and his brothers are enjoying the properties of his father being the successors. As such they are liable to discharge the liabilities of his father being successor. There is no door to enter into the open land to an extent of 1 Acre 20 Guntas and he do not know the survey numbers of the open area. He further admitted that the suit plot and the plot claimed by them is one and the same. There are two neem trees in the suit plot. There is a temple beside the suit plot. The temple is situated by the side of the compound wall of their house. The compound wall was constructed in the year 2000. The photographs are showing the suit site. Still there is 240 sq yards of land is remaining which is surrounded by compound wall and labourers are residing in the suit plot.
He further admitted that he has not filed any document to show that his father was sick during the period of execution of Ex.A4 and to prove that the signatures of defendant No.1 and his father were forged on Ex.A4.
He further deposed that he does not know the extent of land where his house is existing and there are houses on the two sides of the property.
Again he deposed that there are no houses on the four sides of the property. There is a open land in front of the suit schedule property. The government raised a compound wall towards eastern side of the suit >13< O.S No.2771/2011 property. There is a 4 ft lane in front of his house. He further deposed that there is a hut and room with electricity connection in the suit schedule property. At about two or three years ago, he obtained electricity connection to the existing plot where huts are erected. He further deposed that he has not obtained any electricity meter in respect of suit schedule property. He further admitted in para No.8 in his written statement he mentioned that he got issued reply to the notice got issued by the plaintiff, which is a typographical mistake and he has not filed any application seeking amendment in the written statement in respect of typographical mistakes.
19.After meticulously scanning the entire evidence on the record found the following undisputed facts :
(a) The father of the defendants No.1 to 4 and husband of
Defendant No.5 was the original owner of the property,who died in the year 2000.
(b) The plaintiff and first defendant are working in the same office
(c) All the defendants are residing in the different portions of same premises.
(d) The address mentioned in Ex.A2 & A3,plaint, suit summons and legal notice under Ex.A1 are one and same, where all the defendants are residing.
(e) The suit plot and plot claimed by the defendant No.3 is one and same. There are neem trees in the open plot to an extent of 240 sq. yards.
(f) An open plot is existing adjacent to the residence of the defendants. The owners of the plots in Maruthi Nagar area filed
Writ Petition against the MRO, when the MRO issued notice for demolition of illegal constructions. The plaintiff was not party to >14< O.S No.2771/2011 those Writ Petitions.
(g) The Pw1 did not receive any such notice from the MRO, as such he has not approached the Hon'ble High Court of Andhra
Pradesh by way of filing writ petitions.
(h) The father of the Defendants No.1 to 4 i.e Pochi Reddy S/o
Linga Reddy died on 15-09-2000 and the defendants No.1 to 5 are the legal heirs of deceased K.Pochi Reddy, who is executant of Ex.A4.
(i) As per Ex.B1 i.e Family Member Certificate,the defendants No.1 to 4 are the majors in the year 2000.
(j) Ex.B1 was issued in the year 2000 and Ex.A4 i.e agreement of sale was executed in the year 1999. The defendants No,.1 to 4 are majors at the time of execution of Ex.A4.
20. Section 103 of Indian Evidence Act provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe its existence unless it is provided by any special law that the proof of that fact shall lie on any particular person. Therefore the burden of proof lies on the person who asserts the affirmative of the facts in issue.
21(a)It is the contention of the defendant that the open plot which is adjacent to their house i.e suit schedule plot is a government land. The property owned by his father was the joint family property and his father and brother of his father sold away the joint family property by executing sale deeds in favour of the purchasers.
(b)He further contended that he is not aware about the sale transaction between his father and the plaintiff. He is also not aware about >15< O.S No.2771/2011 the execution of Ex.A4 by his father in favour of the plaintiff and the signatures of his father as well as the signatures of his elder brother i.e first defendant, were forged , as such, Ex.A4 is not enforcable. Therefore, the burden of proof lies on the defendant No.3 that he he has to establish forgery by adducing consistent evidence and Ex.A4 is forged and fabricated document. Except mere stating that the signatures of his father and his elder brother i.e Defendant No.1 are forged and fabricated, the defendant No.3 did not choose to produce or adduce any evidence in support of his contention that the suit plot is government land and it was joint family property. On the other hand Defendant No.1 remained exparte.
Nothing has prevented the Defendant No.3 to file any documentary proof nor was there any obstacle for Defendant No.3 to adduce evidence.
Apparently, no steps have been taken in this direction.
22.In Vidhyadhar's case reported in AIR 1999 SC 1441, the Hon'ble
Apex Court held that “Where a party to the suit does not appear into the witness box and states his own cases on oath and does not offer himself to be cross examined by the otherside, a presumption would arise that the case set up by him is not correct”. Admittedly, the first defendant who has signed on Ex.A4 is alive and working in the office of the plaintiff being the colleague of the plaintiff and residing in the same house, where the Dw1 is residing. Even after that he remained exparte and did not contest the suit subject matter and did not choose to enter into the witness box. The first defendant is the crucial witness and material witness as well as the party to the suit did not appear
before the court. This itself shows that the defendants intentionally and
deliberately with a malafide intention did not appear before the court to put forth their defence plea. Therefore, a presumption arise against the >16< O.S No.2771/2011
Defendant No. 3 that the case set up by him is not correct.
23.The counsel for the defendants vehemently argued that the suit schedule property and boundaries mentioned in the suit schedule property are not at all existing on the ground. He contended that the existing open plot is the government land and there is a temple in that open plot . The photographs filed by the defendants disclosed that there is a temple.The plaintiff did not deny the existence of the temple adjacent to the suit property.
24.It is the contention of the defendant No.3 that the photostate copy of the agreement of sale i.e Ex.A4 was handed over to him. In that copy of agreement of sale there is no signature of Pw2 and the survey number mentioned in the photostat copy are 433 and 434 where as in Ex.A4 the survey numbers are mentioned as 343 and 344, there was no signatures of
Pw2 and the Northern boundary was also corrected. All the corrections were made, subsequently inorder to grab away the property of the defendants. But there is no iota of evidence on the record to show that the survey numbers as well as the corrections in respect of boundaries were subsequently made i.e after the execution of Ex.A4. On the other hand during the cross examination of Pw2 it was elicited that he signed on Ex.A4, immediately after typing the same and he has not signed on the photostate copy which was shown to him by the counsel for the defendants and there are some corrections in respect of survey numbers in Ex.A4. K.Pochi Reddy, who is the father of the Defendants No.1 to 4 is his neighbour. At the time of execution of Ex.A4, Mohan Reddy was aged about 18 years and the defendant No.1 was an employee working with him in the same office.
>17< O.S No.2771/2011
25. In suit for Specific Performance of Contract : The plaintiff has to show his readiness and willingness to perform the contract by offering the explanation for delay. The defendants did not show any serious dispute.
Therefore, the plaintiff is entitled for decree of Specific Performance of contract.
26.The counsel for the defendant No.3 relied on judgement between
Ranganatha Gounder Vs Sahadeva Gounder and others reported in AIR 2004
MADRAS 520 wherein the Hon'ble High Court of Madras In a suit for Specific
Performance of Contract, where 3 months time was stipulated and possession was not delivered.
In para No.9 held that “The plaintiffs Arokiasamy and minors are not the bonafide purchasers. On 20-11-1983, the sale agreement was executed between Renganatha Gounder, the first defendant and Sahadevan, the 7 th defendant for a sale consideration of Rs.31,000/- and towards the advance Rs.10,000/- was paid. On the very same day, the possession of the suit property was handed over to the first defendant by the 7 th defendant. Since then the first defendant has been in possession and enjoyment of the suit property. He was also paying electricity charges. From the beginning, he was ready and willing to perform his part of the contract. After six months of the agreement, he paid Rs.7,000/- on the first occasion, Rs.4,000/- on the second occasion and Rs.600/- on the third occasion. He also made payment towards motor loan and current charges on behalf o the seventh defendant. Thus, totally, he made payment of Rs.21,300/-. The plaintiff knew will about the execution of agreement of sale. After sale, he sent notice dated 27-08-1986 to both the vendor and purchasers. The reply sent by them contained false averments. Therefore, the defendants 1 to 6 are entitled to get the relief of specific performance”
The Hon'ble Apex Court in Chandrani Vs Kamal Rani reported in
AIR 1993 SC 1742 held that “In the case of sale of immovable property there is no >18< O.S No.2771/2011 presumption as to time being the essence of contract. Even if it is not of the essence of choosen all contract, the court may infer that it is to be performed in a reasonable time if the conditions are :
1.From the express terms of the contract 2.From the nature of the property 3.From the surrounding circumstances “If necessary ingredients regarding the performance of the part of the contract by respective parties have not been pleaded and proved before the Court, the specific performance of a contract cannot be enforced.
In the following decisions the Hon'ble Apex Court laid down legal principles with reference to the Questions, whether time is the essence of the contract which are as follows :
(1) Chand Rani Vs kamal Rani (1993( 1 SCC 519 (AIR 1993
SC 1742)
(2) In Vidyanadam K.S v Vairavan (1997) 1 CTC 62 (AIR 1997 SC 1751 (3) Veerayee Ammal v Seeni Ammal 2001 AIR SCW 4377 (AIR 2001 SC 2920 (4) Manjunath Anandappa V Tammanasa AIR 2003 SC 1391 (A) In the case of sale immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. (B) Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. (C) It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language. (D) Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable. It may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. (E) If the contract relates to sale of immovable property , it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default >19< O.S No.2771/2011 does not by itself evidence an intention to make time of the essence. (F) The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. (G) In the case of sale of immovable property, there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time.
In para No.48 held that
In terms of Section 16(c) of the Specific Relief Act, it is obligatory on the part of the plaintiff both to plead in the plaint and prove in the Court that he had all along been ready and willing to perform the essential terms of the contract which were required to be performed by him. In other words, in a suit for specific performance, it is incumbent on the plaintiff not only to set out agreement on the basis of which he sues in all its details, but also he must go further and plead that he has been and is still ready and willing to perform his part of the contract and he has applied to he other party specifically to perform the agreement pleaded by him but the other party, namely the vendor has not done so.”
In para No.49 held that “It is well settled that a person cannot claim the relief of specific performance unless he proves his readiness and willing to perform his part of the contract. Readiness and Willingness to perform includes ability to perform. It is incumbent upon the buyer to satisfy the Court that he was ready and willing with the money or had the capacity to pay for the property and that he had at all events made proper and reasonable preparations and arrangements for securing the purchase money. Unless this is established, Section 16(c) of the Specific Relief Act would create a bar to the grant of this discretionary relief.
“From these decisions, it is clear that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract. At the same time, it cannot be stated that the time limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.
27.After careful scrutiny of Ex.A4 found that there was no such time stipulated in the agreement of sale. Moreover, the document i.e Ex.A4 even >20< O.S No.2771/2011 though titled as agreement of sale, total sale consideration was paid and , possession was delivered on the date of execution of Ex.A4 to the vendee i.e plaintiff by the vendor i.e father of the defendants No.1 to 4 in the presence of Defendant No.1 and Pw2. Therefore, non performance of contract or the stipulation of time does not arise in the present case.
Moreover, in Ex.A4, the executant agreed to execute the sale deed whenever the plaintiff approaches him. The Dw1 during the cross examination of Pw1 himself elicited that the plaintiff approached his father several times with a request to execute registered sale deed in his favour. But the same was not done for several reasons. It was also elicited during the cross examination of Pw1 that the Pw1 did not approach the father of the defendants for certain period due to financial problems of the plaintiff . Thereafter, again he approached the defendants requesting them to register the document in his favour basing on Ex.A4. The evidence of
Pw1 and the circumstances elicited by the defendant in the evidence of
Pw1 and Pw2 disclosed that the time was not essence of the contract under Ex.A4. Moreover, the evidence of Pw2 disclosed that the father of
Dw1 suffered from heart problem for the period of 4 years prior to his death. During the cross examination of Dw1, he himself deposed that his father i.e the executant of Ex.A4 dt.27-07-1999 died in the year 2000 due to his illness. Therefore, that might be the reason for not coming forward for the execution of registered sale deed by his late father. The evidence on the record established that due to unforeseen events delayed the execution of Ex.A4 and prevented the plaintiff to get a registered document in his favour. Therefore, issue No.1 is answered accordingly in favour of the plaintiff and against the defendants.
>21< O.S No.2771/2011
28. Issue No.2 : Whether the plaintiff is in possession of suit schedule property?
And
Issue No.3 : Whether the plaintiff is entitle for the relief of perpetual injunction against D1 to D5?
29. In suits for permanent injunction the grant of injunction is a discretionary relief. Prima facie the plaintiffs have to prove their possession by establishing that they are in possession of suit schedule property by the date of filing of the suit. Thereafter, the question as to nature of interference by the defendant and the type of preventive relief would become significant.
30. Under Section 101 of Indian Evidence Act, whoever desires any court, to give Judgement, as to any legal right or liability dependent on the existence of facts which they asserts, must prove that those facts exist. In suits for perpetual injunction as the plaintiff's approached the court, the burden lies on the plaintiff's. They have to show that they got prima facie case, balance of convenience in their favour and they will suffer irreparable injury if injunction is not granted. Therefore, the plaintiff's have to prove their own case by adducing consistent and cogent evidence.
31. It is the contention of the plaintiff that the possession of the suit schedule property was delivered to him on the date of execution of Ex.A4 and he is in possession and enjoyment of the suit schedule property. During the cross examination of Pw1 it was elicited that there is one neem tree in the suit schedule property and the property is in the possession of the plaintiff. The Dw1 himself admitted in the cross examination that suit schedule property is an open plot and the plaintiff did not receive any notice from the revenue department . There are two neem trees in the suit plot >22< O.S No.2771/2011 and the suit plot and the plot claimed by him are one and the same. The temple is existing by the side of the compound wall of their house which was constructed in the year 2000 and the open plot is admeasuring 240 sq yards which is surrounded by the compound wall.
32.It is the contention of the defendant that some labourers are residing in the suit plot, but the defendant did not produce any evidence to show that the suit property is in his possession and there are some labourers residing in the suit plot. The defendant not even chosen to produce any one of the labourers, who said to have been residing in the suit plot inorder to prove his contention. Even the photographs filed by the defendant under
Ex.B2 did not disclose that some labourers are residing in the suit plot.
33. Ex.B3 are the the electricity bills and payment receipts disclosed that the electricity connection is in the name of K.Raghava Reddy in respect of house bearing No.8-1-136. Whereas the suit schedule property is a open plot in the survey No.343 and 344 admeasuring 200 sq yards. Therefore,
Ex.B3 is not at all relevant to the suit subject matter.
34.The evidence of Dw1 is inconsistent and self contradictory. The
Dw1 deposed that there is a hut in the suit plot with electricity connection and some labourers are residing in that hut and he failed to produce hte electricity bills and receipts in respect of electricity connection said to have been existing in the suit plot. On the other hand during the cross examination he himself admitted that the suit plot is an open plot admeasuring 240 sq yards. The evidence of Dw1 is inconsistent, self contradictory untrustworthy. Whereas the evidence of Pw1 and Pw2 coupled with Ex.A1 to A4 proved that the plaintiff is in possession of the suit plot.
>23< O.S No.2771/2011
The Defendant during the cross examination of Pw2 also elicited that there is a temple near the suit schedule property and the suit schedule property is a open plot. Mohan Reddy i.e Dw1 got constructed a wall by closing the entry into the suit schedule property. This itself established that the
Defendants are trying into interfere with the possession of the plaintiff.
Therefore, issues No.2 and 3 are answered accordingly in favour of the plaintiff and against the defendants.
35. Issue No.4 : Whether the suit of the plaintiff is barred by limitation?
36.It is the contention of the defendant No.3 that the suit of the plaintiff is barred by limitation as the agreement of sale i.e Ex.A4 was executed on 27-07-1999 and the present suit was filed by the plaintiff seeking relief of Specific Performance of Contract, on 10-11-2011.
37. Under Article 54 of Limitation Act : In a suit for Specific Performance of contract the limitation is three years from the date fixed for the purpose or if no such date is fixed when the plaintiff has notice that purpose is refused.
38. It is an undisputed fact that Ex.A4 Notarized agreement of sale was executed on 27-07-1999 and the suit was filed by the plaintiff on 10-11- 2011 i.e after the gap of 12 years. Ex.A4 does not contain any specific date for the purpose of performance of contract. It is evident from the evidence of Pw1 that the plaintiff approached the father of the defendants No.1 to 4 and also defendants on several times to execute registered sale deed in his favour as he intended to construct a house in the suit plot. The said request was an oral request. It is also an undisputed fact that the legal notice got issued by the plaintiff was served on the defendants under Ex.A2 >24< O.S No.2771/2011 and A3 i.e postal receipts and acknowledgment cards. Even the defendants did not dispute the genuinity of Ex.A2 and A3. On the other hand the Dw1 himself admitted that the address mentioned in Ex.A2 & A3 and the address mentioned in plaint and legal notice are one and the same. This itself shows that the cause of action arose on the date of execution of Ex.A2 and A3. It is also an undisputed fact that
39.After careful scrutiny of Ex.A4 found that the vendee i.e K.Pochi
Reddy S/o Linga Reddy has offered the suit schedule property to sell the same to the vendor i.e plaintiff and received the total sale consideration of
Rs.48,000/- on the same date i,e on 27-07-1999. Accordingly, the possession was delivered in favour of the plaintiff. It is also evident from Ex.A4 that vendor is the absolute owner and possessor of the suit schedule property from the date of execution of Ex.A4. As such the legal heirs of vendee have no right, interest or title over the schedule of property. In Clause 4 in Ex.B4 the vendor agreed to register the schedule property in favour of the vendee and also to mutate the name of the vendee in all concerned authorities, “as and when the vendee wishes to do so and the registration charges should be borne by the vendee only”. Therefore, it is crystal clear from the above clause and contents in Ex.A4 that the sale transaction was completed on the date of execution of Ex.A4 itself. Accordingly, the possession was delivered and there was no time stipulated for registration of document in favour of the plaintiff herein. Therefore, issue No.4 is answered accordingly in favour of the plaintiff and against the defendants.
40. Issue No.5 : To what relief?
In lieu of findings in issue no. 1 to 4, the suit of the plaintiff is deserves to be decreed.
>25< O.S No.2771/2011
In the result : The suit of the plaintiffs is decreed with costs in favour of the plaintiff and against the defendant by restraining the defendants and their henchmen permanently from their illegal alienation of the suit schedule property to the third parties and the defendants are directed to execute the register sale deed in respect of open plot in Sy. No.343 and 344
Admeasuring 200 sq yards situated a Maruthi Nagar, Shaikpet Village and
Mandal, Golconda Post, Hyderabad within the period of three months from the date of judgement.
Dictation given to Personal Assistant, transcribed by her, corrected and
pronounced by me in Open Court, on this the 25th day of March,2014.
Sd/-
Smt.N.Roja Ramani VII Junior Civil Judge, City Civil Court,Hyderabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFF: FOR DEFENDANT:
PW-1 : C.Pochaiah DW-1 : Mohan Reddy PW-2 :G.Gnaneshwar
DOCUMENTS MARKED
FOR PLAINTIFF: Ex.A1 : Office copy of legal notice Ex.A2 : Postal receipts (5 Nos) Ex.A3 : Acknowledgment cards (5 Nos) Ex.A4 : Agreement of sale dt.27-07-1999
FOR DEFENDANT: Ex.B1 : Original family member certificate dt.1-1-2001 Ex.B2 : Photographs 5 in number alongwith CD Ex.B3 : Electricity bill and receipt 2 in number Ex.B4 : Order in Writ Petition No.8414/2001 dt.6-7-2005 Ex.B5 : Order in W.P No.8610 / 2001 dt.5-12-2008 Ex.B6 : Order in W.P No.8962/2001 dt.5-11-2008.
Sd/-
Smt.N.Roja Ramani VII Junior Civil Judge, City Civil Court,Hyderabad >26< O.S No.2771/2011
SUIT SCHEDULE PROPERTY
All that the open plot in Sy. No.343 and 344 Admeasuring 200 SQ yards situated at Maruthi Nagar, Shaikpet Village and Mandal, Golconda Post, Hyderabad which is bounded by : North : Well and 15 Feet wide Road South : Neighbour's House 8-1-136/A/149 East : Road West : Neighbour's House 8-1-136/A/1/2
Sd/-
Smt.N.Roja Ramani VII Junior Civil Judge, City Civil Court,Hyderabad