IN THE COURT OF THE JUNIOR CIVIL JUDGE :: DARSI
PRESENT: Sri S.C. RAGHAVENDRA,
JUNIOR CIVIL JUDGE, PODILI
FAC: JUNIOR CIVIL JUDGE, DARSI
Wednesday, this the Twenty-Seventh (27 th ) day of February, 2019
COMMON JUDGMENT
IN
O.S. No. 150 of 2009 AND O.S. No. 221 of 2010
Description of the Parties in O.S. 150 of 2009:-
Between:
1. Maram Nagi Reddy, S/o Subbarayudu, aged about 50 years, Hindu, Agriculture, R/o East Chowtapalem Village, Darsi Mandal, Prakasam District
2. Peram Venkateswara Reddy, S/o Musala Reddy, aged about 46 years, Hindu, Agriculture, R/o Kothareddypalem Village, Darsi Mandal, Prakasam District …Plaintiffs
And
1. Medagam Chowda Reddy, S/o Nagi Reddy, aged about 62 years, Hindu, Business, R/o Darsi Village and Mandal, Prakasam District
2. Kothamaram Nageswara Reddy, S/o Bodi Reddy, aged about 25 years, Hindu, Business, R/o Darsi Village and Mandal, Prakasam District
3. Kothamaram Padmavathi, W/o Venkateswarlu, aged about 35 years, Hindu, Agriculture, R/o East Chowtapalem Village, Darsi Mandal, Prakasam District …Defendants
This Suit is coming on 06-02-2019 for fnal hearing before me in the presence of Sri V. Ranga, Advocate for the Plaintifs and of Sri
S.V.S. Seetharama Sastry, Advocate for Defendants, and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-
Description of the Parties in O.S. 221 of 2010:
Between:
1. Kothamaram Nageswara Reddy, S/o Bodi Reddy @ Yanadhi Reddy, aged about 60 years, Hindu, Landholder, permanent resident of East Chowtapalem Village, Darsi Mandal, Prakasam District
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2. Kothamaram Padmavathi, W/o Venkateswara Reddy, aged about 37 years, Hindu, Landholder, permanent resident of East Chowtapalem Village, Darsi Mandal, Prakasam District
3. Kothamaram Sahithya, D/o Venkateswarlu, aged about 22 years, Hindu, Landholder, permanent resident of East Chowtapalem Village, Darsi Mandal, Prakasam District
4. Kothamaram Nikhila, D/o Venkateswarlu, aged about 19 years, Hindu, Landholder, permanent resident of East Chowtapalem Village, Darsi Mandal, Prakasam District
(Plaintiffs 3 and 4 are declared as majors as per orders in I.A.
No. 691/2017, dated 18-03-2017)
…Plaintiffs
And
1. Maram Venkateswara Reddy, S/o Venkata Reddy @ Chinna Abbaiah, aged about 47 years, Hindu, Landholder, R/o Kothareddypalem Village, H/o Darsi, Darsi Mandal, Prakasam District
2. Maram Rami Reddy, S/o Venkata Reddy @ Chinna Abbaiah, aged about 37 years, Hindu, Landholder, R/o Kothareddypalem Village, H/o Darsi, Darsi Mandal, Prakasam District
3. Peram Venkateswara Reddy, S/o Musala Reddy, aged about 53 years, Hindu, Landholder, R/o Kothareddypalem Village, H/o Darsi, Darsi Mandal, Prakasam District
4. Maram Nagi Reddy, S/o Subbarayudu, aged about 57 years, R/o East Chowtapalem Village, Darsi Mandal, Prakasam District …Defendants
This Suit is coming on 06-02-2019 for fnal hearing before me in the presence of Sri S.V.S. Seetharama Sastry, Advocate for the
Plaintifs and of Sri V. Ranga, Advocate for Defendants, and upon perusing the material available on record, and upon hearing the arguments and having stood over for consideration to this day, till this day, this Court delivered the the following:-
Pleadings in O.S. 150 of 2009:
1.Suit for permanent injunction restraining the defendants, their men, representatives and assignees from ever interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintif, their men, representatives and assignees for ever and for costs.
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2.The brief averments of the plaint are that the suit schedule property is admeasuring Ac.0-10 cents in S.No.88/2014 located in East
Chowtapalem Village of Darsi Mandal. Originally the suit schedule property is the ancestral property of Maram Venkateswara Reddy and
Maram Rami Reddy and they sold the suit schedule property to the plaintifs herein under registered sale deed dated 15-01-2009 and also delivered the possession to them and since then the plaintifs are in possession and enjoyment of the suit schedule property. While so, due to disputes between the plaintifs and defendants, the defendants conspired together and created false documents and issued legal notice to the plaintifs on 01-07-2009 and the plaintifs also gave reply to the defendants. Thereafter, the defendants are trying to dispossess the plaintifs from the suit schedule property. Hence, the suit.
3.The second defendant fled written statement by denying the claim and possession of the plaintifs over the suit schedule property and the same was adopted by defendants 1 and 3.
4.It is contended that the vendors of the plaintifs colluded with the plaintifs herein and created the registered sale deed dated 15-01-2009 in order to knock away the suit schedule property belonging to the defendants 2 and 3. It is also contended that originally the suit schedule property belongs to Maram Venkata Reddy @ China Abbaiah, who is the father of vendors of the plaintifs, and he sold the suit schedule property to Kothamaram Bodi Reddy @ Yanadi Reddy and his son Kothamaram
Venkateswarlu for agreed consideration of Rs.19,000/- under an agreement of sale dated 01-09-1987. Having received Rs.10,000/- towards advance at the time of executing the agreement of sale possession was delivered to the vendees. The remaining balance of
Rs.9,000/- was paid on 01-12-1987 within the agreed period of six months. As such the suit schedule property was sold by the father of
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vendors of the plaintif. The vendees K. Bodi Reddy is the father and K.
Venkateswarlu is the brother of second defendant and third defendant is the wife of second vendee K. Venkateswarlu. After purchasing the suit schedule property under the above stated agreement of sale, the vendees and second defendant jointly enjoyed the property and leased it for keeping bunks. After the death of above vendees of agreement of sale, the second defendant and third defendant along with her two daughters were in exclusive possession and enjoyment of the suit schedule property. It is also stated that the mother of K. Bodi Reddy/frst vendee and the mother of M. Venkata Reddy/vendor in the said agreement of sale are real sisters, as such both the families are closely related to each other. Hence, the sons of Maram Venkata Reddy/vendor knew very well that their father sold the suit schedule property to the vendees in the above agreement of sale along with delivery of possession. During the life time of vendor in the agreement of sale, the sons of the vendor never questioned and objected the peaceful possession and enjoyment of the suit schedule property by the vendees and the second and third defendants herein, after the death of the original vendor and vendees misunderstandings arose between the sons of vendor with D2 and D3 and on that the sons of Maram Venkata
Reddy executed a collusive and nominal sale deed in favour of the plaintifs herein to cause wrongful loss to the second and third defendants. After knowing about the nominal and collusive sale deed
dated 15-01-2009 executed in favour of the plaintif, the second and
third defendants issued legal notice to the plaintifs and their vendors but they gave reply with false allegations and fled this collusive suit without any cause of action.
5.On the basis of rival pleadings on both the parties; the following issues are framed.
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1. Whether the plaintiff is in possession and enjoyment over the plaint schedule property?
2. Whether the plaintiff is entitled for relief of permanent injunction?
3. To what relief?
Pleadings in O.S. No. 221 of 2010:-
6.The suit is fled for Specifc Performance of Agreement of Sale
dated 01-09-1987, praying the Court to direct the defendants to execute
the regular sale deed in favour of the plaintifs in pursuance of terms of the agreement of sale, failing which the same may be done through process of Law or in default there of granting permanent injunction, restraining the defendants, their representatives and assignees to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintifs, their representatives and assignees and for costs.
7.The brief averments of the plaint are as follows:
The frst plaintif is the son of Kothamaram Bodi Reddy and brother of Kothamaram Venkateswarlu, who are the vendees of agreement of sale The second plaintif is the wife and plaintifs 3 and 4 are the daughters of second vendee Kothamoram Venkateswarlu in the agreement of sale. The pleadings in the plaint herein are nothing but reiteration of the written statement in O.S. 150/2009 along with the fact of ready and willingness on their part for seeking specifc performance of contract/agreement of sale dated 01-09-1987. In addition to that it is also pleaded that the vendor in the agreement of sale was the manager of joint family, as such he is entitled to execute the agreement of sale for his family necessities and accordingly, he executed the said agreement of sale on 01-09-1987 by receiving the advance payment and subsequently, on 01-12-1987 the remaining agreed amount was
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also paid to the vendor, as such the vendees fulfll their part of obligation and they are entitled to obtain the registered sale deed from the defendants.
8.Per contra, the fourth defendant fled written statement and the same was adopted by the remaining defendants. It is the contention of the defendants that Maram Venkata Reddy never acted as manager and kartha of his family consisting of his sons who are defendants 1 and 2 and he never sold the suit schedule property under the alleged agreement of sale and never received the alleged agreed consideration under it. It is also contended that Maram Venkata Reddy never had any necessity to sell the suit schedule property and he cannot sell the suit schedule property as the frst defendant herein was major on the date of alleged agreement of sale. After the death of Maram Venkata Reddy, the defendants 1 and 2, being the legal representatives, sold the suit schedule property to the defendants 3 and 4 under registered sale deed
dated 15-01-2009 for consideration and also delivered possession to
them and the defendants 3 and 4 are not aware of the relationship between the families of Maram Venkata Reddy and Kothamaram Bodi
Reddy. Further, it is contended that the alleged agreement of sale cannot be enforced as the same is barred by limitation. Further, they denied the leasing of suit schedule property to third parties who erected bunks and the alleged collection of rents from them. Hence, the plaintifs are not entitled to claim the suit schedule property under the alleged agreement of sale and that defendants 3 and 4 are the absolute owners of the suit schedule property.
9. In view of the rival pleadings of both the parties, the following issues are settled for trial:
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1. Whether the plaintiff is entitled for registered of sale deed
by virtue of agreement of sale dated 01-09-1987 for
defendants?
2. Whether the plaintiff is entitled for relief of permanent injunction?
3. To what relief?
10.In view of the docket orders dated 09-08-2017, this Court has clubbed O.S. 150/2009 and O.S.221/2010 as the reliefs claimed against the schedule property in both the suits are one and the same . Hence both the suits were clubbed together and joint trial was conducted and the evidence was recorded in O.S.221/2010.
11.In order to substantiate their contention, the plaintifs examined
PW.1 to PW.7 and marked Exs.A1 to A9. On the other hand the defendants examined DW.1 to DW.4 and marked Exs.B1 to B4.
12.Heard both.
13.After considering the nature of above two suits along with the issues framed therein, the above issues in O.S.150/2009 and
O.S.221/2010 are hereby arrayed as follows with the consecutive
numericals, i.e., issues in O.S. 150/2009 as 1 to 3 and issues in
O.S.221/2010 as 4 to 6.
ISSUES
1. Whether the plaintiff is in possession and enjoyment over the plaint schedule property?
2. Whether the plaintiff is entitled for relief of permanent injunction?
3. To what relief ?
4. Whether the plaintiff is entitled for registered of sale deed
by virtue of agreement of sale dated 01-09-1987 for
defendants?
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(Whether the plaintiffs are entitled for registration of sale
deed by virtue of agreement of sale Dt.1.9.1987 from the
defendants ?)
5. Whether the plaintiff is entitled for relief of permanent injunction?
6. To what relief?
On perusal of the above issues along with nature of pleadings of the parties, it is observed that issue No.4 relating to the entitlement of plaintifs in O.S. 221/2010 for getting the registered sale deed appears to be primary and signifcant, hence the same is resolved initially as follows.
14.For the purpose of brevity, the parties in both the suits are hereby referred as plaintifs and defendants with reference to O.S.221/2010.
15. Issue No.4:-
As per the plaintifs case Kothamaram Bodi Reddy and his son
Kothamaram Venkateswarlu purchased the suit schedule property under an agreement of sale/Ex.A1 by paying the advance amount and the remaining balance consideration is paid under Ex.A2 endorsement from
Maram Venkata Reddy. The frst plaintif being the son of the frst vendee and plaintifs 2 to 4 being legal representatives of second vendee are entitled to seek specifc performance of contract basing on the above agreement of sale from the sons of vendor who are arrayed as defendants 1 and 2. As the defendants 1 and 2 sold the suit schedule property and executed a nominal registered sale deed in favour of defendants 3 and 4, all the defendants herein are liable to execute a registered sale deed in favour of the plaintifs.
16.To prove the same, the frst plaintif examined himself as PW.1 and deposed by reiterating the plaint averments in toto and marked
Exs.A1 to A9. Further, the plaintifs also examined the son of one of the attestors under Ex.A1 as PW.2, who identifed his father's signature,
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the scribe of Ex.A2 as PW.3 and the attestors of Ex.A2 as PW.4 and
PW.6. PW.3 deposed that he witnessed the execution of Ex.A1 agreement of sale and further he also deposed about the execution of
Ex.A2 part payment endorsement by describing himself as a scribe of it.
PW.4 and PW.6 deposed similarly about the attesting Ex.A2 part payment endorsement in the presence of parties. Further, the plaintifs also examined one Kothamaram Ramana Reddy as PW.5, who deposed that he is running a bunk in the suit schedule property which was obtained on lease from the father of the frst plaintif and at present his son is managing the bunk. Further, the plaintifs also examined one
Kothamaram Bali Reddy as PW.7, who deposed that the plaintifs were in possession of the suit schedule property.
17.In the cross-examination of PW.1, he denied that Ex.A2 is created by colluding with the attestors and scribe and asserted his version about the execution of Exs.A1 and A2. In the cross-examination of PW.3, PW.4 and PW.6, they denied the suggestions that the execution of Ex.A2 as collusive and to help the plaintifs and they denied that they are interested and supporting the plaintifs. PW.4 and PW.6 stated that they do not remember the details of the language in which Ex.A2 was signed by Maram Venkata Reddy and do not remember the number of persons present at the time of execution and the contents of Ex.A2. In the cross- examination of PW.5, he stated that he knew that the defendants 1 and 2 sold away the suit schedule property to defendants 3 and 4 and that defendants 3 and 4 are in possession and enjoyment of the suit schedule property. PW.3 admitted that he is close relative of frst plaintif and he voluntarily stated that defendants 1 and 2 are also his close relatives.
18.To disprove the case of the plaintifs, the fourth defendant examined himself as DW.1 and deposed by reiterating the pleadings in
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the written statement in toto and marked Exs.B1 to B3. The second defendant also examined himself as DW.2 and he deposed similarly as stated by DW.1 and Ex.B4 marked through him. Two third parties namely Nusum Venkata Rami Reddy and Kamireddy Velugonda Reddy as DW.3 and DW.4 and they deposed in similar lines that the suit schedule property originally belongs to defendants 1 and 2 and they sold it to defendants 3 and 4 under a registered sale deed and DW.3 is one of the attestors in it.
19.In the cross-examination of DW.1, he denied that Ex.B1 is a nominal and collusive document without consideration. DW.2 admitted that DW.3 is his maternal uncle and that his father was kartha of his family during his childhood. DW.3 admitted his relationship with third defendant as his brother-in-law and also deposed that he remember the second identifying witness in Ex.B1. DW.4 stated that though he was present at the time of execution of Ex.B1, but he did not attest the said document.
ARGUMENTS :
20.Basing on the above pleadings and the evidence, the learned counsel for the plaintifs argued that the contract of sale is 30 years old document and he proved the execution of the same with the aid of presumption u/Sec. 90 of Indian Evidence Act. The period of 30 years shall be reckoned from the date of execution of document to date when it was marked in the evidence. As none of the parties and the attestors under Ex.A1 are alive, he was unable to examine any of the surviving parties or witnesses in the said document, however he examined the son of one of the attestors as PW.2 and he identifed his father's signature. Accordingly, he proved the execution of Ex.A1 suit agreement of sale.
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21.With regard to Ex.A2 part payment endorsement showing that the remaining balance amount was paid, he examined the scribe as PW.3 and attestors as PW.4 and PW.6 and they are deposed consistently with regard to the execution of Ex.A2, as such the execution of Ex.A1 is also proved. Therefore, the defendants 1 and 2 being the legal representatives of deceased vendor and defendants 3 and 4 being the subsequent purchasers with notice of prior execution of suit agreement of sale are liable to execute regular sale deed in favour of the plaintifs.
22.In support of his contention, he relied upon ratios held in (1) 'Raja
Sagi Padmanabharaju v. Sagi Lakshmi Kumara Raju and others' reported in 1967 (1) The Andhra Weekly Reporter 333 (FB) with regard to 'the capacity of the kartha of the family in disposing the family property for out of necessity', (2) 'Kesarapu Manikyalu v. Venna Perumallayya (died) by Lrs. and others' reported in 2000 (1) ALD 32 and (3) 'K.
Venkat Reddy (died) & Ors., Vs. Kunuthuru Akkamma & Anr.,' reported in 2006 (1) LS 180 with regard to 'the obligation of presumption u/Sec.
90 of Indian Evidence Act to 30 years old document and the proof of such document', (4) 'Motilal Jain v. Ramdasi Devi and others' reported in 2000 (5) ALD 33 (SC) and (5) 'D.N. Raju and others v. Santosh Verma and another' reported in 2007 (4) ALT 492 with regard to 'considering the delay for fling the suit of specifc performance after several years from the date of agreement of sale' and fnally (6) 'Ram Niwas (dead) through Lrs. v. Bano and others' reported in 2000 (5) ALD 58 (SC) with regard to 'the presumption of notice to the subsequent purchasers'.
23.On the other hand, the learned counsel for the defendants contended that the suit agreement of sale and the balance payment endorsement which are marked as Exs.A1 and A2 are collusive creations for the purpose of knocking away the suit schedule property illegally by taking the advantage of death of Maram Venkata Reddy. He further
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contended that PW.2 is an interested witness and his evidence cannot be considered and the evidence of PW.3, PW.4 and PW.6 also cannot be considered as they categorically admitted their ignorance about the execution of Ex.A2. Further, he contended that the categorical admission of PW.5, that defendants 1 and 2 sold away the suit schedule property to the defendants 3 and 4 and that defendants 3 and 4 are in possession and enjoyment of the suit schedule property, is destroying the case of the plaintifs. Further, the evidence of PW.7 is also not helpful to the plaintifs as he admitted himself as their close relative.
24.In support of his contentions, he relied upon certain decisions without referring parties names. As per his reference in 2017 (1) ALD 276 and 2016 (4) ALD 1 with regard to 'readiness and willingness of the party seeking specifc performance of the contract' and contended that in the present case originally referred vendees and plaintifs herein failed to establish their readiness and willingness at any point of time.
Further he also referred 2009 (4) ALD 21 (SC) and 2013 (5) ALD 227 (DB) with regard to 'limitation within which a suit for specifc performance of contract can be fled and about the obligation of article 54 of Limitation Act'. Finally, he also relied upon 2011 (3) ALD 270 stating that 'it is the burden of the plaintif to prove that he fled the suit within three years from the date of notice of refusal from the defendants'. With the above references it is argued that the plaintifs are not entitled for seeking specifc performance of suit agreement of sale.
25.Having considered the same, it is observed that the prime and signifcant issue in both the suits is the determination of whether the plaintifs entitlement for seeking specifc performance of suit agreement of sale, accordingly the pleadings, evidence and arguments of the learned counsels is considered. In this regard, it is observed that the suit
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agreement of sale is executed on 01-09-1987. In order to consider whether the said suit agreement of sale is qualifed to derive the beneft of Section 90 of Indian Evidence Act, it must be a document of 30 years old. In computing the period of 30 years, the time period shall be reckoned from the date of execution of document to till the same the tendered in evidence. The above view of reckoning the time period is according with the ratio held in 'Kesarapu Manikyalu v. Venna
Perumallayya (died) by Lrs. and others' reported in 2000 (1) ALD 32 and in view of the ratio held by the privy counsel in 'Surenderroy
Krishna v. Mirza Mohammad Syed Ali' in which it was held that 'Section 90 is applicable if the document is not 30 years old, at the date it is fled
in the Court, but becomes, 30 years old at the date when its
genuineness becomes a subject of the proof'. Therefore, the presumption can proftably rendered to Ex.A1 execution, by importing the benefts u/Sec. 90 of Indian Evidence Act the following presumptions can be raised (1) that the signature and every other part of the document which purports to be in the handwriting any of person is in that persons handwriting (2) that the document was attested by the person by whom it purports to have been executed and (3) that the document was attested by the person by whom it purports to have been attested.
Further the evidence of PW2 is relevant under section 47 of
INDIAN EVIDENCE ACT in identifying the signature of his father as the scribe of the agreement of sale.The evidence if PW2 coupled with the above presumptions plays a vital role in proof of execution of Ex.A1.
Now it is pertinent to elicit that whether Ex.A1 agreement of sale was executed by a proper person.
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26.In this regard, the learned counsel for the defendants argued that
Maram Venkata Reddy never acted as kartha or manager of the family and that frst defendant was a major as on the alleged date of execution and therefore the same is not enforceable against them. In this regard, it is observed that as per the ratio held in 'Raja Sagi Padmanabharaju v.
Sagi Lakshmi Kumara Raju and others' reported in 1967 (1) The
Andhra Weekly Reporter 333 (FB) wherein it was held that 'whether kartha of a Hindu joint family enters into a contract of sale and signs it himself without satisfying that he was signing on behalf of other members of the family also, and the contract is binding on the other members under the principles of Hindu Law, then the kartha would have singed the contract on behalf of other members also'. In this regard, I also relied upon a ratio held by Hon'ble Supreme Court of India in 'Keharsingh (dead) through LRs., v. Nachittarkaur' decided on 20-08- 2018 in Civil Appeal No.3264/2011 in which it was held that 'the kartha of a joint family can dispose the ancestral property for legal necessity of the family by describing articles 254 and 241 of Mulla's Classical Work on Hindu Law'. Having considered the same, it is observed that though the frst defendant herein is a major as on the date of alleged agreement of sale under Ex.A1, his father being the head of the family and kartha, which is categorically admitted by DW.2, can sell the family property for legal necessity and the legal necessity is explained in
Ex.A1. Further, it is observed that the defendants 1 and 2 are none other than the close relatives of plaintifs family and therefore the said alienation under Ex.A1 cannot be easily ruled out from their notice. The contention of the learned defendants counsel about the disposition of suit schedule property by Maram Venkata Reddy alone by ignoring the frst defendant, who was major during then, does not have any signifcance because the frst defendant never raised any objection till the legal notice was issued by the plaintifs and the silence on the part
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of the frst defendant shall be assumed as nothing but acquiescence of the alienation made by his father. Further, it is also observed that if the defendants are really serious about the contention of ignoring the frst defendant in Ex.A1, then he is the proper person to adduce evidence in that regard to prove his exception as fatal to the execution of Ex.A1.
Failure on behalf of the defendants to examine the frst defendant on their behalf is seriously fatal to their contention to deny the disposition of suit schedule property under Ex.A1 as void abinitio. Therefore,
Maram Venkata Reddy is considered as a qualifed person to dispose of the family property in the capacity of head of the family during then.
27.Now, it is observed that under Ex.A1 advance money was paid and the remaining balance was paid on 01-12-1987 under Ex.A2 endorsement. To prove Ex.A1 endorsement with regard to the payment of balance of consideration, the evidence of PW.3, PW.4 and PW.6 are note worthy to prove its execution. As the vendors and vendees, who are the executor and excutee under Ex.A2 are no more alive, the evidence of the scribe and attestors plays a vital role in this regard. The learned counsel for the defendants failed to contradict their evidence to any extent in their cross-examination. Though, PW.4 and PW.6 deposed their ignorance with regard to the minute and precise details of execution, the same does not take away the sanctity of their attestations on the particular day and the mere contentions of the defendants about their interestedness does not withstand to contradict their evidence. At this juncture, it is pertinent to note that in imputing any interest to the witness, the burden is upon the party who imputes the same. For referring any witness as interested, mere relationship is not a factor to afect the credibility of the witness as per the ratio held in ‘Maranadu and another v. State rep. by Inspector of Police, Tamilnadu’ reported in 2008 (16) SCC 529 and in describing the witnesses
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interested, I relied upon the ratio held in ‘State of Rajasthan v. Smt.
Kalki and another’ reported in 1981 (2) SCC 752 in which it was held that “related is not equivalent to interested, a witness may be called as interested only when he or she derives some beneft from the result of litigation, i.e., from the decree in civil case or in issuing an accused person punished’. By considering the ratio held in the above judgments the mere relationship of PW.3 and PW.6, who are the common relatives to both plaintifs and defendants 1 and 2, and whose interestedness was not proved in favour of the plaintifs is not an impediment to consider their evidence if it is otherwise believable and the evidence of the PW.4 is also found to be inconsonance of their evidence and therefore the evidence of above trio is enough to believe the execution of Ex.A2. At this juncture, it is pertinent to note that when the endeavor of plaintifs in proving the execution of Ex.A2 is proved then, it is necessary to consider the purpose behind the execution of Ex.A2 which relates back to and construes the execution of Ex.A1 substantially.
28.With regard to the contention of the learned counsel for the defendants about the lack of readiness and willingness on the part of the vendees and the plaintifs, it is observed that the proof of Ex.A1 along with Ex.A2 describes that the entire agreed consideration was paid and there is nothing left on behalf of the plaintifs except to obtain a regular sale deed from the defendants. Proof of readiness and willingness will be ascertained only in cases where the plaintifs are bound to pay the remaining sale consideration. But in cases where the entire consideration was paid, such agreements are considered as executory agreements and therefore readiness and willingness shall be deemed on the part of the plaintifs. Therefore, the ratios held by the defendants reported in 2017 (1) ALD 276 and 2016 (4) ALD 1 are not relevant and applicable to this case.
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29.The another contention of the defendants is that the suit is barred by limitation. In this regard it is observed that though the suit agreement of sale was executed in the year 1987, no demand was made to obtain regular sale deed till the plaintifs came to know about the alienation in favour of defendants 3 and 4 in the year 2009.
Immediately, within few days after knowing about the same, the frst plaintif issued legal notice to all the defendants and in turn they gave reply individually. As such the silence till the alienation of suit schedule property in favour of defendants 3 and 4 can be deemed to be acquiescence on the part of defendants 1 and 2 with regard to suit agreement of sale. Till the alienation in favour of defendants 3 and 4, the plaintifs and the vendees under the suit agreement of sale never had an occasion to demand the execution of regular sale deed. Even by considering the time after execution of sale deed in favour of defendants 3 and 4, the suit is fled well within the limitation as per
Article 54 of Limitation Act. Article 54 of Limitation Act is as follows:
“For Specifc performance of a contract: Three years The date fxed for the performance, or, if no such date is fxed, when the plaintif has notice that performance is refused.o
The case of the plaintifs who awaked after knowing about the alienation of the suit schedule property under Ex.B1 and issued legal notice falls under the second category of Article 54 to reckon the period of limitation within three years from the date of execution of Ex.B1.
Hence, the suit is fled well within the limitation and the ratios relied by the learned defendants counsel in 2017 (1) ALD 276 and 2016 (4) ALD 1 are not applicable in this case. Here it is also pertinent to note that it is settled law as per the ratio held in CHAND RANI VS KAMAL RANI reported in 1993 (1) SCC 519 that in the agreement to sell regarding immovable property the presumption is that time is not the essence of the contract. Unless the time as essence of contract is mentioned in
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unequivocal language the contract can be enforced for Specifc
Performance at any time by reckoning the limitation as provided by article 54 of Limitation Act. Accordingly, the plaintifs have proved the execution of agreement of sale under Ex.A1 along with Ex.A2 payment of balance of sale consideration and answered the contention of the learned defendants counsel with regard to the readiness and willingness of the plaintifs and the fact that the suit was fled within the limitation, as such the suit agreement of sale is the enforceable document against the defendants 1 and 2, who are the legal representatives of Maram
Venkata Reddy.
30.With regard to the enforceability against defendants 3 and 4, it is observed that they being the subsequent purchasers they are also liable u/Sec. 19 (b) of Specifc Relief Act, 1963 and it is presumed that they purchased the suit schedule property with due notice of Ex.A1 agreement of sale. In this regard, I relied upon the ratio held in 'Ram
Niwas (dead) through Lrs. v. Bano and others' reported in 2000 (5) ALD 58 (SC), wherein it was held that:
‘provisions of Explanation II to Section 3 of the Transfer of Property Act which is germane on the point of notice. Indeed, issue No.10 was not properly framed. The word ‘notice’ should have been used in issue No.10 instead of ‘knowledge’ because Section 19(b) uses the word ‘notice’. From the defnition of the expression, “a person is said to have notice” in Section 3 of the Transfer of Property Act, it is plain that the word ‘notice’ is of wider important then the word ‘knowledge’. A person may not have actual knowledge of a fact but he may have notice of it having regard to the aforementioned defnition and Explanation II thereto. If the purchasers have relied upon the assertion of the vendor or on their own knowledge and abstained from making enquiry into the real nature of the possession of the tenant, they cannot escape from the consequences of the deemed notice under Explanation II to Section 3 of the Transfer of Property Act. On this point, in the light of the above discussion, we hold that the purchasers will be deemed to have notice’.
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Therefore, the defendants 1 and 2 and the concurrence of defendants 3 and 4 are required to invalidate Ex.B1 and to execute a regular sale deed in favour of the plaintifs. Accordingly, issue No.4 is answered in favour of the plaintifs and against the defendants.
31. Issue No.5:-
With regard to the entitlement of the plaintifs in OS.No.150/2009/
Defendants 3 and 4 herein whether they can seek the relief of permanent injunction against the plaintifs herein in respect of the suit schedule property, it is vehement contention of the learned counsel for the defendants herein that PW.5 has categorically admitted that defendants 1 and 2 sold the suit schedule property to the defendants 3 and 4 and they are in possession of the suit schedule property. In reply the learned counsel for the plaintifs argued that the alleged admission of PW.5 with regard to the said possession is after fling of the suit cannot be considered to ascertain whether the plaintifs or defendants were in possession of the suit schedule property as on the date of fling of the suit. In this context it is observed when the plaintifs successfully proved the execution of suit agreement of sale and by virtue of the presumptions laid down in section 3 explanation 2 of Transfer of
Property Act and section 19 (2) of Specifc Relief Act, the defendants 3 and 4 herein being the subsequent purchaser is deemed to have notice of prior transaction unless and until the same is disproved with cogent evidence. Therefore when the plaintifs herein are entitled for seeking regular sale deed from the defendants herein and as such defendants 1 and 2 and the subsequent purchasers 3 and 4 are bound to execute the registered sale deed in favour of the plaintifs, there is no point in considering any admission with regard to the possession referred in favour of the subsequent purchasers or any defendants. At this juncture it is also pertinent to note that after considering the nature of the property that it is a vacant site in which PW5 was running a bunk in it
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his admission cannot be considered to recognize the lawful possession of the defendants. Because when the statue vide section 19 (b) is operating against the subsequent purchasers D3 and D4 by requiring them to execute the registered sale deed by invalidating Ex.B1 their possession even if it is proved cannot be a criteria to grant the relief of
Permanent Injunction against the plaintifs who are entitled to obtain a registered sale deed from the defendants. Unless the possession is proved to be lawful and the court is satisfed that such possession shall be protected in due process of law, no relief of Injunction can be granted on the mere admission reference by any of the witness.
Accordingly the point is answered against the defendants herein / plaintifs in OS.150/2009.
32. Issue Nos.1 to 3:-
In view of my observations in issue Nos.4 and 5, the issues 1 to 3 are answered against the defendants and in favour of the plaintifs.
33. Issue No.6:-
IN THE RESULT, the suit in O.S.221/2010 fled for specifc performance of contract is decreed, directing the defendants to execute registered sale deed in pursuance of agreement of sale dated 01-09-1987 in favour of the plaintifs within three months from the date of Judgment, failing which the plaintifs can get it through process of law. Consequently the suit in O.S. 150/2009 fled for permanent injunction is dismissed. In the circumstances, both parties shall bear their respective costs.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open Court, this the 27 th day of February, 2019
JUNIOR CIVIL JUDGE, PODILI
FAC: JUNIOR CIVIL JUDGE, DARSI
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS: FOR DEFENDANTS:
PW.1: K. Nageswara ReddyDW.1: M. Nagi Reddy
PW.2: D. Kesava RaoDW.2: M. Rami Reddy
PW.3: M. ChavadaiahDW.3: N. Venkatarami Reddy
PW.4: T. Ravi KumarDW.4: K. Velugonda Reddy
PW.5: K. Ramana Reddy
PW.6: G. Venkata Rathnam
PW.7: K. Bali Reddy
DOCUMENTS MARKED
FOR PLAINTIFFS:
Ex.A1/01-09-1987:Stamped agreement of sale deed
Ex.A2/01-12-1987:Endorsement of balance of sale consideration
Ex.A3/01-07-2009:Office copy of legal notice along with four postal receipts
Ex.A4/ - - - :Postal acknowledgment served on frst defendant
Ex.A5/ - - -:Postal acknowledgment served on second defendant
Ex.A6/ - - -:Postal acknowledgment served on third defendant
Ex.A7/ - - - :Postal acknowledgment served on fourth defendant
Ex.A8/31-07-2009:Reply notice issued by the defendants 1 and 2
Ex.A9/31-07-2009:Reply notice issued by defendants 3 and 4
FOR DEFENDANTS:
Ex.B1/15-01-2009:Registered sale deed executed by defendants 1 and 2 in favour of defendants 4 and 3
Ex.B2/01-07-2009:Notice issued by the plaintifs counsel to the defendants 1 to 4
Ex.B3/ - - -:Reply notice issued by the defendants 4 and 3 to the plaintifs counsel
Ex.B4/31-07-2009:Reply notice issued by the defendants 2 and 1 to the plaintifs counsel
J.C.J., Podili FAC: J.C.J., DARSI