IN THE COURT OF THE XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT AT HYDERABAD.
Present: SRI S.V.V. NATHA REDDY, XI Additional Chief Judge, City Civil Court, Hyderabad.
Friday, the 25th day of January, 2019.
O.S.No.340 of 2007 and O.S.No.606 of 2011
O.S.No.340 of 2007
Between:
G. Jayender Babu, S/o. Late Balaiah, Aged 40 years, Occ: Service, R/o.H.No.1-1-379/226, Jawahar Nagar, Hyderabad.
...Plaintiff.
And
1. A. Shankar, S/o. Late A. Papaiah, Aged about 52 years, Occ: Service, R/o.H.No.1-1-379/226, Jawahar Nagar, Chikkadpally, Hyderabad.
2. A. Srinivas, S/o. A. Shanker, Aged about 33 years, Occ: Business,
3. A. Ramesh, S/o. A. Shankar, Aged about 30 years, Occ: Business,
4. A. Shyam, S/o. A. Shankar, Aged about 27 years, Occ: Student,
5. V. Vidya Sagar, S/o. A. Shankar, Aged about 20 years, Occ: Student, 2 to 5 R/o. 8-6-363/4A, Bhavani Nagar, Old Bowenpally, Secunderabad.
6. B. Nagamani W/o. Lingaiah, Aged 52 years, Occ: Govt Service, R/o. Part of SRT 377, MCH No.1-1-379/226 Chikkadpally, Hyderabad.
(Amended as per the Orders in I.A.No.2753 of 2009 Dated 25.01.2010).
...Defendants.
2 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
O.S.No.606 of 2011 (Old No. 1489 of 2007 on the file of V Senior Civil Judge,
City Civil Court, Hyderabad) :-
Between:
Bollam Nagamani, W/o. B. Lingaiah, Aged about 50 years, Occ: Govt. Service, R/o. Part of SRT.377, House bearing No. 1-1-379/226, Chikkadpalli, Hyderabad.
...Plaintiff
And
1. A. Shankar, S/o. Late A. Papaiah, Aged about 52 years, Occ: Govt. Employee, Binder in Book Binding Section, R/o. C/o. Govt. Text Book Printing Press, Behind Mint Compound, Khairatabad. Or House bearing No.8-6-367/4A, Bhavani Nagar, Old Bowenpalli, Secunderabad.
2. A. Srinivas, S/o. A. Shanker, Aged 33 years, Occ: Business,
3. A. Ramesh, S/o. A. Shankar, Aged 30 years, Occ: Business,
4. A. Shyam Kumar, S/o. A. Shankar, Aged 21 years, Occ: Student,
5. A. Vidya Sagar, S/o. A. Shankar, Aged 19 years, Occ: Student,
Defendants 2 to 5 are R/o. House bearing No.8-6-367/4A, Bhavani Nagar, Old Bowenpally, Secunderabad.
6. G. Jayendra Babu, S/o. Late Balaiah, Aged 40 years, Occ: Service, R/o.1-1-379/226, Jawaharnagar, Chikkadpally, Hyderabad. (D.6 is impleaded as per Orders in I.A.No.1516/2007 dt: 01.07.2009)
...Defendants.
These suits are coming on 04.01.2019 and 23.01.2009 respectively for final hearing before me in the presence of Sri M.A.K. Mukheed, Advocate for Plaintiff in O.S.No.340 of 2007 and Defendant No.6 in O.S.No.606 of 2011 and of Sri M. Sudhakar, Advocate for Defendants No.1 to 5 in O.S.No.340 of 2007 and O.S.No.606 of 2011 and of Sri M. Prabhakar Rao, Advocate for Defendant No.6 in O.S.No.340 of 2007 and plaintiff in O.S.No.606 of 2011, upon hearing 3 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 both the counsels and on perusing the material available on record and the matter having been stood over for consideration till this day, the Court delivered the following:-
C O M M O N J U D G M E N T
O.S.No.340 of 2007:-
1.The suit in O.S.No.340 of 2007 is filed by the plaintiff G. Jayender Babu,
S/o. Late Balaiah against the defendants No.1 to 6 seeking specific performance of agreement of sale.
2.The avements of the plaint in brief are that the plaintiff is the tenant of defendant No.1 in premises bearing No.SRT 377, M.No.1-1-379/226 situated at
Industrial Housing Colony, Jawahar Nagar, Chikkadpally, Hyderabad from the year 2000 onwards. Defendant No.1 offered a portion of the above said house for sale and plaintiff agreed to purchase the same and entered into an agreement with the defendant No.1 to purchase a portion of the said premises admeasuring 115 sq.yards out of 215 sq.yards for a total sale consideration of
Rs.16,00,000/-. Plaintiff paid a sum of Rs.3,00,000/- towards part sale consideration on 09.08.2006. Defendant having received the said amount executed an agreement of sale in favour of the plaintiff in the presence of witnesses namely A. Prashanth, S/o. Late Sailu, A. Sujatha, W/o. Late A. Sailu and A. Vijramma, W/o. Late A. Sailu.
3.It is further averred that originally father of defendant No.1
Sri A. Papaiah was allotted the entire house on Hire Payment System by the 4 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
Labour Department. But, by the time the Labour Department executed sale deed, the said Papaiah died leaving behind three sons and two daughters. And after that all the legal heirs of late Papaiah approached competent court of law and obtained succession in their favour. That all the legal heirs of late A. Papaiah surrendered their rights in favour of defendant No.1 in the said succession proceedings and as such, the Labour Department executed and registered sale deed in favour of defendant No.1.
4.It is further averred that it was agreed by the defendant No.1 that he will receive the balance sale consideration and register the suit property in favour of the plaintiff within a period of three months from the date of agreement or as and when the defendant gets a sale deed in his favour from the Labour
Department. On 16.09.2006 plaintiff further paid a sum of Rs.2,00,000/- to
A. Sujatha W/o. Late A. Sailu and A. Vajramma, W/o. Late A. Sailu, both being wives of defendant’s brother and they issued a receipt for such amount.
5.It is averred that the defendant got a sale deed in his favour from the
Labour Department on 22.05.2007 vide Document No.1820 of 2007 registered at Sub-Registrar Office, Chikkadpally. And thereafter, the plaintiff approached defendant on 22.05.2007 and reminded the defendant about the Agreement, for which the defendant promised to execute a registered sale deed within one week. After that on 04.06.2007, plaintiff approached the defendant by offering the balance sale consideration. But, defendant bluntly refused to execute a registered sale deed in favour of plaintiff by stating that he was offered higher 5 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 amount of Rs.20,00,000/- by others and demanded the plaintiff to pay the same.
When plaintiff tired to convince defendant remained adamant. The plaintiff is always ready and willing to pay the balance sale consideration and to obtain sale deed. And the defendant is bound to receive the balance sale consideration and execute registered sale deed in favour of the plaintiff in respect of the suit schedule property. But, the defendant refused to execute and register a sale deed. Therefore, the plaintiff got issued legal notice through registered post and UCP to the defendant on 06.06.2007 calling upon defendant to receive the balance sale consideration and execute and register a sale deed in favour of the plaintiff. Defendant refused to receive the notice and trying to alienate the suit schedule property to third parties at higher rate with an intention to avoid sale to the plaintiff. Hence, the suit.
6.Defendants No.1 to 5 jointly filed written statement admitting that the plaintiff is tenant of the defendant in the suit premises from the year 2000 onwards. But, disputed offering a portion of the house for sale to the plaintiff, and receiving part sale considerations from the plaintiff and entering into agreement of sale with the plaintiff in the presence of witnesses. It is admitted that the father of defendant No.1 was originally allotted the entire house and after his death other legal heirs surrendered their rights in favour of defendant
No.1 in the succession proceedings and thereby the Labour Department executing registered sale deed in favour of defendant No.1. It is averred that the suit is filed with a malafide intention by the plaintiff for the purpose of 6 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 blackmailing the defendants to extract money from defendant No.1 and defendant No.1 never agreed to sell the suit property to the plaintiff.
7.It is averred that the plaintiff filed the suit by creating and fabricating documents. That the plaintiff occupied the suit property as tenant in the month of April, 2000 on a monthly rent of Rs.2,000/- without any security deposit and he paid rents to defendant No.1 up to December, 2005 and thereafter failed to pay the rents and whenever the defendant No.1 demanded for payment of rents plaintiffs requested to give time to clear the payment. And did not come forward to pay the rents and finally in the month of May, 2006 defendant No.1 along with his sons went to the plaintiff and demanded to vacate the suit schedule property for non-payment of rents. But, the plaintiff requested to grant three months time to clear all the dues. Thereafter, in the month of
August, 2006, Defendant No.1 in need of money for his family necessities requested the plaintiff to extend a hand loan of Rs.5,00,000/- from him or from any other persons through him. On such request, plaintiff by promising to arrange Rs.3,00,000/- obtained signature on blank bond paper of Rs.100/- denomination in advance by promising defendant No.1 to arrange the amount within a week and thereafter, plaintiff did not arrange hand loan as promised and postponed the matter from time to time in order to play fraud for the purpose of grabbing the property of the defendants.
8.It is further averred that the plaintiff approached the court with unclean hands by creating and fabricating documents. And as such, plaintiff failed to 7 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 pay the rents from January, 2006 to September, 2007 and fell due of
Rs.40,000/-. These defendants reserves their right to file a separate suit in his plaint for recovery of the arrears of rent and recovery of possession and therefore, prayed to dismiss the suit.
9.Defendant No.6 field written statement denying the claim of the plaintiff and contended that she has been in continuous possession and enjoyment of all that part of property bearing No.SRT-377 admeasuring 113 sq.yards along with his family members from 13.02.1993 with the permission of all the legal heirs of late A. Papaiah, who was the original allottee. It is averred that this 6th defendant with her own funds constructed permanent structures over the part of
SRT-377 and on 09.12.1995 she entered into written agreement of sale with the 1st defendant in respect of property bearing No.SRT-377 MCH No.1-1-379/226 admeasuring 150 sq.yards. Apart from other land of 65 sq.yards of
Government land and the structures thereon totally admeasuring 215 sq.yards situated at Jawaharnagar, Chikkadpally for a total sale consideration of
Rs.4,00,000/- and that the schedule property in the present suit is a part and parcel out of the total land of 215 sq.yards.
10.It is averred that 1st defendant received a sum of Rs.5,64,309/- from this 6th defendant and her husband towards entire sale consideration amount and also towards other miscellaneous extent. And on several occasions this 6th defendant and her husband requested defendant No.1 to complete the sale transaction but, defendant No.1 has been postponing the same. And on 8 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 15.07.2007 this defendant came to know that defendant No.1 has obtained regular sale deed from the Labour Department on 22.05.2007 in respect of the entire 215 sq.yards and immediately approached defendant No.1 on 18.07.2007 and demanded him to execute registered sale deed in her favour in respect of the entire 215 sq.yards. And also to hand over the vacant physical possession of the remaining 102 sq.yards. But, defendant No.1 did not heed to her request.
Due to the attitude of defendant No.1 this 6th defendant was forced to file suit for specific performance against defendants No.1 to 5 vide
O.S.No.1489/2007(renumbered as O.S.No.606/2011) on the file of V Senior
Civil Judge, City Civil Court, Hyderabad, and the said suit is still pending and
defendants No.1 to 5 are contesting the same and in that the plaintiff herein filed impleading petition and got impleaded himself as defendant No.6 and after that this 6th defendant came to know about the alleged present suit transaction.
11.It is further averred that as on the date of alleged present suit transaction i.e., on 09.08.2006, the other defendants have no right to enter into the alleged agreement of sale in respect of schedule premises. Since defendant No.1 has already entered into the agreement of sale with this 6th defendant in respect of the entire 215 sq.yards, on 09.12.1995 itself and also received the entire sale consideration amount. Therefore, the alleged suit agreement is a sham, void and voidable agreement and the same was created and brought into existence in collusion with defendants No.1 to 5 to deprive the contractual rights of this defendant. And therefore, the suit is liable to be dismissed.
9 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
12.On the basis of rival pleadings, the following issues have been settled for trial :
1.Whether the defendant No.1 executed agreement of sale on 09.08.2006 and received any consideration on that day and on 16.09.2007?
2.Whether the plaintiff is ready and willing to perform his part of contract at all the material points of the time?
3.Whether the plaintiff is entitled for the specific performance of contract?
4.To what relief?
13.The suit in O.S.No.606 of 2011 i.e., O.S.No.1489/2007 on the file of the learned V Senior Civil Judge, City Civil Court, Hyderabad was filed by the plaintiff Bollam Nagamani, W/o. B. Lingaiah against defendants No.1 to 5 seeking specific performance of agreement of sale and Defendant No.6 plaintiff in O.S.No.340/2007 got impleaded himself vide Orders in I.A.No.1516/2007
dated 01.07.2009 when the suit O.S.No.1489/2007 was pending on the file of
the learned V Senior Civil Judge, City Civil Court, Hyderabad.
O.S.No.606 of 2011:-
14.The averments of the plaint in brief are that on 09.12.1995 plaintiff entered into an agreement of sale with defendant No.1 in respect of all that property bearing No.SRT.377, MCH No.1-1-379/226, admeasuring 150 sq.yards, apart from extra 65 sq.yards of Government land and structures thereon total admeasuring 215 sq.yards situated at Jawaharnagar, Chikkadpally,
Hyderabad for a total sale consideration of Rs.4,00,000/-, herein afterwards referred to as suit schedule property. That, father of defendant No.1 10 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 late A. Papaiah was the original allotee of SRT.377 and during the life time of
A. Papaiah he has paid Rs.1,000/- towards hire purchase installments to the
Labour Department and died on 08.04.1986 leaving behind his wife
Smt. A. Venkatamma, three sons namely A. Sharabaiah, A. Shanker and
A. Sailu and two daughters namely Bharatamma and Saroja. Subsequently, all the legal heirs of late A. Papaiah filed CA.No.61/1994 before the A.P.
Administrative General, Hyderabad for issueof succession certificate in favour of A. Shanker(defendant No.1) herein. Accordingly, succession certificate was issued in favour of defendant No.1 on 15.04.1995 in respect of the schedule property. And in pursuance of the same, defendant No.1 submitted an application before the Commissioner of Labour for transfer of the schedule property in his name along with the 65 sq.yards of government land abetting to the said quarter on nominal costs.
15.It is further averred that from 13.02.1993 onwards, plaintiff along with her family members has been in continuous possession and enjoyment of the part of schedule property approximately admeasuring 113 sq.yards towards south west from south to north of the schedule property. With the permission of all the legal heirs of late A. Papaiah, plaintiff with her own funds constructed permanent structures over the said part of schedule property and residing in the same. Earlier to the present agreement of sale dated 09.12.1995, on two occasions defendant No.1 and his other brothers and sisters have entered into an agreement of sale with the plaintiff in respect of schedule property by 11 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 receiving considerable amounts towards earnest money. Since defendant No.1 has obtained the succession certificate in his favour in respect of schedule property and also to avoid legal and further complications, the plaintiff and defendant No.1 entered into a fresh agreement of sale on 09.12.1995. That, defendant No.1 has received a sum of Rs.2,61,309/- towards earnest money out of the total consideration of Rs.4,00,000/- and the same was admitted and acknowledged by defendant No.1 under the said agreement of sale.
16.It is averred that as per the terms and conditions of the agreement of sale
dated 09.12.1995, defendant No.1 admitted the possession and enjoyment of
the plaintiff over the part of the schedule property. Uunder Clause 4 of the said agreement, defendant No.1 agreed to execute a registered sale deed in favour of plaintiff or her nominees within three months from the date he gets the registered sale deed from the Labour department. It was also agreed as per the terms of said agreement, that defendant No.1 will receive the balance sale consideration amount at the time of registration and in the mean time on three occasions, defendant No.1 insisted the plaintiff and her husband for payment of remaining sale consideration and also excess amount towards expenditure for getting the sale deed and other miscellaneous expenditure. As per the instructions of the plaintiff, her husband paid a sum of Rs.25,000/- on 20.06.1997 and Rs.50,000/- on 01.04.2006 and Rs.2,28,000/- on 07.11.2016 to the defendant No.1 and the same was acknowledged by defendant No.1 by issuing 3 separate receipts towards the entire balance sale consideration amount 12 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 and also other miscellaneous expenditure and thereby, defendant No.1 in total received a sum of Rs.5,64,309/- from the plaintiff and her husband towards entire balance sale consideration and other miscellaneous expenditure.
17.It is further averred that plaintiff and her husband on several occasions requested and demanded defendant No.1 for completion of the sale transaction but, defendant No.1 has been postponing the same on one pretext or the other and in the mean time in the year 1998, officials of MCH tried to demolish the structures raised by plaintiff and on that the plaintiff filed the suit in O.S.No.
4919/1998 on the file of II Junior Civil Judge,City Civil Court, Hyderabad against the MCH and obtained interim orders in respect of the schedule property. That, defendant No.1 while receiving a sum of Rs.2,28,000/- on 17.11.2006 promised plaintiff to complete the sale transaction immediately after he gets the sale deed from the Labour Department and when the plaintiff and her husband approached defendant No.1 on 02.05.2007, defendant No.1 promised to complete the sale transaction within one or two months by stating that he is going to obtain sale deed from the Labour department within one or two months. On 15.07.2007 at about 10.30 A.M., defendant No.2 gave a phone call to the husband of the plaintiff and informed that his father defendant No.1 has obtained registered sale deed from Labour department on 22.05.2007 vide registered document No.1820 of 2007 registered before the Sub-Registrar,
Chikkadpalli in respect of schedule property and his father defendant No.1 has executed a registered gift settlement deed in their favour i.e. defendants No.2 13 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 to 5 on 15.06.2007 vide Document No.2133 of 2007 registered before
Sub-Registrar, Chikkadpally. Therefore, defendant No.1 is not having any right and title over the schedule property. Immediately, plaintiff and her husband made enquiry in the Sub-Registrar Office and confirmed about said sale deed and gift settlement deed by obtaining encumbrance certificate on 16.07.2007 and contacted defendant No.1 on 18.07.2007 over telephone and demanded him for execution of registered sale deed and for delivery of physical possession of the remaining schedule property admeasuring 102 sq.yards, but, defendant
No.1 stated that he has already executed a gift settlement deed in favour of defendants No.2 to 5 and did not care the request and demand of the plaintiff.
18.It is averred that as per the terms and conditions of agreement of sale
dated 09.12.1995 there is contractual obligation on the part of the defendant
No.1 to execute registered sale deed in favour of the plaintiff or her nominee within three months as and when he gets the registered sale deed from the
Labour department. To avoid the same, defendant No.1 executed gift settlement deed in favour of defendants No.2 to 5 on 15.06.2007 with a malafide intention in collusion with defendants No.2 to 5. Therefore, the gift settlement deed dated 15.06.2007 is void, ab-initio, sham and nominal document and liable to be treated and declared as null and void. It is also averred that by the date of executing the said gift settlement deed, defendant
No.1 has no subsisting title or right to convey anything in favour of defendants
No.2 to 5 in respect of the schedule property.
14 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
19.It is further averred that on 22.07.2007 at about 11.00 A.M, defendants along with some unsocial elements came to the schedule property on two vehicles and threatened plaintiff, her husband and other family members to vacate the part of the schedule property, in which the plaintiff and her family members are in possession and enjoyment since 1993 onwards and they stated that they are alienating the schedule property to some third parties. But, the plaintiff and her family members resisted the illegal attempts of the defendants and their henchmen. Hence, the suit.
20.Defendants No.1 to 5 filed written statement jointly by denying the agreement of sale dated 09.12.1995 and contended that defendant No.1 never executed any such agreement of sale to receive any consideration in respect of the suit schedule property in favour of the plaintiff. That, the plaintiff by creating false and fabricated documents filed the suit for the purpose of grabbing the suit schedule property from the defendants. It is admitted that father of defendant No.1 late Papaiah was the original allottee and after his death on 08.04.1986 all his sons, daughters and wife became the L.Rs of late
Papaiah and filed CA.No61/1994 before the A.P. Administrative General,
Hyderabad for succession certificate in favour of defendant No.1 and accordingly, succession certificate was issued in favour of defendant No.1 on 15.04.1995 in respect of the schedule property. And inpursuance ofsuch certificate defendant No.1 submitted application before the Commissioner of
Labour for transfer of the schedule property in his name along with the 65 sq.yards land abutting to the said quarter on nominal price.
15 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
21.It is denied that since 13.02.1993 onwards plaintiff along with her family members has been in continuous possession and enjoyment of the part of schedule property admeasuring 113 sq.yards. Also denied about plaintiff making permanent constructions over the part of schedule property with her own funds. It is averred that the plaintiff without the knowledge of this defendant intentionally and wantonly filed injunction suit in O.S.No.4919/1998 on the file of II Junior Civil Judge, City Civil Court, Hyderabad and such suit will not confirm any right on the plaintiff to claim the suit schedule property. It is also denied that on 17.11.2016, defendant No.1 received a sum of
Rs.2,28,000/- from the plaintiff and promised to complete the sale transaction immediately after getting sale deed from the Labour department by contending that the same is false and baseless.
22.It is averred that from February, 1995, plaintiff is the tenant in respect of the suit schedule property on a monthly rent of Rs.1,500/- per month and thereafter the plaintiff used to pay the rents from time to time at the rate of
Rs.2,000/- per month up to January, 1996 and thereafter from February to
December 1996 onwards plaintiff failed to pay the rents to the defendants by taking advantage of the disputes in the family of defendants and on strong request and demands made by defendant No.1, plaintiff paid Rs.25,000/- on 20.06.1997 out of total due amount of Rs.32,000/- and thereafter plaintiff neglected to pay the subsequent arrears of rent up to November 2006 @
Rs.2,000/- per month. Plaintiff along with her husband taken advantage of 16 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 innocence of defendant No.1 created and fabricated forged documents of agreement of sale and converted the rental receipts into sale consideration receipts and filed false claim. Hence, the suit is liable to be dismissed.
23.Defendant No.6 filed written statement pleading that the plaintiff deliberately did not made him as a party to the suit knowing fully well that this defendant is in possession of the suit property to an extent of 115 sq.yards apart from having a validagreement of sale from defendant No.1. And also filed suit for specific performance which is pending. It is denied about the plaintiff entering into agreement with defendant No.1 on 09.12.1995 in respect of the schedule property by contending that the agreement of sale dated 09.12.1995 is fabricated and created for the purpose of the present suit to counter blast the case filed by this defendant. It is averred that the plaintiff has nothing to do with the part of suit schedule property admeasuring 115 sq.yards claimed by this defendant through Agreement of sale. It is averred that this defendant is in possession of 115 sq.yards confirming part of the house bearing No.STR-377 by paying substantial consideration and entering into an agreement of sale with defendant No.1.
24.It is further averred that defendant No.1 has no right to execute gift deed in favour of defendants No.2 to 5 as he has already received substantial amounts towards sale consideration for 115 sq.yards and executed agreement
dated 08.08.2006 without canceling such agreement of sale executed in favour
17 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 of this defendant and defendant No.1 has no right to execute agreement of sale in favour of the plaintiff.
25.It is averred that this defendant is the tenant of suit property from 2000 onwards and subsequently, he entered into an agreement to purchase 115 sq.yards out of 215 sq.yards from defendant No.1 for a total sale consideration of Rs.16,00,000/- and paid Rs.3,00,000/- towards part sale consideration on 09.08.2006 and agreement of sale was executed in his favour in the presence of witnesses and he is in possession of 115 sq.yards in the suit property as a tenant and agreement holder. It is further averred that defendant No.1 did not become owner by that time and as such, he promised to execute the sale deed within a period of three months form the date of agreement or as and when defendant
No.1 gets sale deed in his favour from the Government i.e. Labour Department who originally allotted the said above house to the defendants-2 to 5 father.
Further stated that on the request of defendant No.1, this defendant further paid a sum of Rs.2,00,000/- to A. Sujatha W/o. Late A. Sailu and A. Vajramma,
W/o. Late A. Sailu, both being the wives of Defendant No.1’s brother as their husband was also a shareholder in the property as legal heirs of late Papaiah.
That, the Labour department registered sale deed in favour of defendant No.1 on 22.05.2007 vide document No.1820/2007 and after that this defendant approached defendant No.1 to execute and register a sale deed in his favour.
But, defendant No.1 refused to execute and register sale deed stating that he was offered higher amount of Rs.20,00,000/- by others. That on repeated 18 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 requests defendant No.1 did not change his stand and as such this defendant was constrained to file suit in O.S.No.340/2007 on the file of III Additional
Chief Judge, City Civil Court, Hyderabad seeking specific performance of contract against defendant No.1 and during the pendency of the above suit, this defendant came to know that defendant No.1 has executed a gift deed in favour of defendants No.2 to 5 and as such, this defendant was constrained to implead defendants No.2 to 5 and they were impleaded in the said suit. It is averred that all the defendants No.1 to 5 and plaintiff colluded and brought into existence the alleged agreement of sale dated 09.12.1995 and defendant No.1 just to keep the cause of action alive and to file the suit has mentioned some fictitious dates of payment in the year 1997 and 2006. It is averred that this defendant not only an agreement holder but also in possession of the portion of the suit premises which is admitted by the defendants No.2 to 5 and as such, the suit of the plaintiff is not maintainable and liable to be dismissed.
26.On the above rival pleadings, the following issues have been settled on 22.08.2013 for trial:
1.Whether the plaintiff is entitled for the relief to declare the gift settlement deed dated 15.06.2007 vide document No.2133 of 2007 executed by defendant No.1 in favour of defendants No.2 to 5 as null and void?
2.Whether the plaintiff entered into an agreement of sale with defendant No.1 dated 09.12.1995 and entitled to seek the relief of specific performance of contract?
3.Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from alienating the suit schedule property?
4.To what relief?
19 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
27.During the course of trial, on memo the suit in O.S.No.340 of 2007 was clubbed with O.S.No.606 of 2011 and evidence was recorded in O.S.No.606 of 2011. The G.P.A. holder of plaintiff in O.S.No.606 of 2011 and the attestor of agreement of sale dated 09.12.1995 are examined as PWs.1 and 2 on behalf of the plaintiff in O.S.No.606 of 2011 who is defendant No.6 in O.S.No.340 of 2007 apart from marking her documents as Exs.A.1 to A.17. On behalf of defendants No.1 to 5, in both the suits DW.1 was examined and on behalf of the defendant No.6 in O.S.No.606 of 2011 who is the plaintiff in
OS.No.340/2007 himself deposed as DW.2 apart from examining scribe of
agreement of sale dated 09.08.2006 and attesting witnesses of the said agreement of sale and receipt dated 16.09.2006 as DWs.3 to 6 and marked his documents as Exs.B.1 to B.8.
28.Heard arguments from the learned counsel on both sides and also received written arguments from the learned counsel for plaintiff in
O.S.No.340/2007. The learned counsel for the plaintiff in O.S.No.606 of 2011
in which the evidence was recorded argued that the sale deed Ex.A.15 and agreement of sale Ex.A.16 are the crucial documents and at the time of entering into agreement Ex.A.16 defendant No.1 was not the owner of the suit schedule property and he was only the allottee and therefore, as per clause (4) of the said agreement Defendant No.1 has to execute sale deed within three months from the date of agreement or from the date of obtaining sale deed in his favour from
Commissioner of Labour, Government of Andhra Pradesh and that the plaintiff 20 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
B. Nagamani is admittedly in possession of western side of the suit schedule property as on the date of Ex.A.16 agreement and the vendor defendant No.1 obtained sale deed under Ex.A.14 dated 22.05.2007 from the Labour department, but, executed Gift Deed dated 15.06.2007 under Ex.A.5 in favour of his sons Defendants No.2 to 5 instead of executing sale deed in favour of plaintiff Nagamani. He also argued that after filing the suit by the plaintiff
Nagamani, defendants No.2 to 5 executed sale deed under Ex.A.15 dated 09.11.2012 for an extent of 100 sq.yards out of 215 sy.yards in favour of plaintiff Nagamani and the same is not disputed by the defendants No.1 to 5 or defendant No.6 (plaintiff in O.S.No.304 of 2007). He contended that defendant
No.1 who is the executant of agreement of sale Ex.A.16 did not give evidence denying the said agreement and his son deposed as DW.1. Failure of defendant
No.1 to enter into the witness box leads to draw an adverse inference against defendant No.1 to believe the execution of agreement of sale Ex.A.15. He also invited the attention of this court to the recitals of the sale deed under Ex.A.15 wherein it was mentioned about the agreement of sale Ex.A.16 and the pendency of the litigation in O.S.No.340 of 2007 and contended that due to the pendency of the suit O.S.No.340 of 2007 defendants No.2 to 5 have executed the sale deed under Ex.A.15 only for the extent of 100 sq.yards. And therefore, the plaintiff Nagamani is entitled for the relief of specific performance of contract and Defendant N.6 who is plaintiff in OS.No.304/2007 is not entitled for any relief as the agreement of sale dated 09.08.2006 is subsequent to the agreement of sale Ex.A.16 dated 09.12.1995. He further contends that Ex.B.1 21 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 agreement of sale on which defendant No.6 in O.S.No.606/2011 and plaintiff in
O.S.No.340 of 2007 is relying upon does not contains particulars of the
location and boundaries of the property agreed to be sold and without boundaries it is not possible to identify the property and therefore, such agreement is not enforcible. And therefore, the suit in O.S.No.340/2007 is liable to be dismissed by decreeing the suit in O.S.No.606 of 2011.
29.The learned counsel for defendant No.6 in O.S.No.606 of 2011 who is plaintiff in O.S.No.340/2007 argued that there is no dispute that defendant No.6
Jayender Babu was in possession of the suit schedule property of O.S.No.340 of 2007 as a tenant and about the source of title of defendant N.1, who is the father of defendants No.2 to 5.He argued that D. Jayender Babu, plaintiff in
O.S.No. 340 of 2007 proved that the agreement of sale Ex.B.1 was executed by
defendant No.1 as an absolute owner by examining the scribe of said agreement as DW.3 and the attesting witnesses of Ex.B.1 agreement as DWs.4 and 5 and the attesting witness of the receipt dated 16.09.2006 (Ex.B.2) as DW.6. He also argued that the plaintiff Jayender Babu in OS.No.340 of 2007 was always ready and willing to perform his part of contract and defendant No.1 executed gift deed in favour of his sons Defendants No.2 to 5 and therefore, defendants No.2 to 6 are added in the suit O.S.No.340 of 2007. He also contended that before filing the suit O.S.No.340 of 2007 notice under Ex.B.4 was issued to the defendants through registered post and under Certificate of Posting. And after that filed the suit on 31.08.2007. He also pointed out that before filing the suit 22 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
OS.No.606 of 2011, admittedly no legal notice was issued by the plaintiff
Nagamani to the defendants No.1 to 5 as required under Section 16 of Specific
Relief Act which is mandatory for filing a suit for specific performance of contract. Therefore, the suit in O.S.No.606 of 2011 is not maintainable. For this he relied upon a decision in Baddam Prathap Reddy v Chennadi Jalapathi
Reddy and another reported in 2008(5) ALD 200, in which it was held by his
Lordship in para 20of the Judgment that:
“ From the above brief discussion, the law can be taken as well settled that a suit for specific performance has to comply requirements prescribed in Section 16(c) of the Specific Relief Act and Form Nos.47 and 48 of Appendix A of CPC, and averments should be proved. If a suit is filed for specific performance of agreement of sale without making prior demand by way of a notice on the defendant- vendor, such a suit is not in compliance with Form Nos.47 and 48, and therefore, it is liable to be dismissed. This Court also hastens to add that in appropriate case, subject to strictly proving such allegation, an oral demand can also be proper compliance with requirement of law, but this question has to be gone into in detail in appropriate case.”
30.The learned counsel also pointed out that in the agreement of sale
Ex.A.16 the contents of para 3 at page No.2 shows that the vendee Smt. Bollam
Nagamani (plaintiff in O.S.No.606 of 2011) paid to the vendor different sums on different dates including a sum of Rs.13,453/- on 27.04.1996. But, the said agreement Ex.A.16 was executed on 09.12.1995 and such fact clearly shows that the agreement of sale Ex.A.16 is a false and fabricated document. He also argued that the plaintiff in O.S.No.606 of 2011 failed to prove the execution of agreement of sale and for the suggestion given to DW.1 during the cross examination for plaintiff in O.S.No.606 of 2011 to the effect that as per the instructions of defendant No.1 only defendants No.2 to 5 have executed 23 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
Ex.A.15 in favour of the plaintiff, DW.1 denied and added that only an extent of 100 sq.yards has mentioned in the sale deed and that the plaintiff promised to withdraw the suit and subsequently, he failed to withdraw the suit. This part of cross examination of DW.1 reveals that plaintiff Nagamani by promising to withdraw her suit in OS.No.606 of 2011 obtained the sale deed under Ex.A.15 from the defendants No.2 to 5 for the extent of 100 sq.yards. Therefore, the plaintiff Nagamani is not entitled to seek specific performance of contract against the suit schedule property in O.S.No.340 of 2007. He further argued that though the plaintiff Nagamani obtained a sale deed under Ex.A.15 for an extent of 100 sq.yards out of the suit schedule property during the pendency of her suit she did not take steps to amend the pleadings of her plaint and the suit schedule property and as the sale deed Ex.A.15 was executed by defendants
No.2 to 5 in favour of the plaintiff Nagamani, she is not entitled to claim the remaining part of the schedule property which is claimed by defendant No.6 in his suit O.S.No.340 of 2007. Therefore, he contends that the suit in O.S.No.606 of 2011 is liable to be dismissed by decreeing the suit in O.S.No.340 of 2007.
31. Issue No.1 in OS.No.606 of 2011:-
Whether the plaintiff is entitled for the relief to declare the gift settlement deed
dated 15.06.2007 vide document No.2133 of 2007 executed by defendant No.1
in favour of defendants No.2 to 5 as null and void?
Plaintiff B. Nagamani obtained sale deed under Ex.A.5 from defendants
No.2 to 5 against part of the suit schedule property. This fact reveals that the plaintiff Nagamani having recognized the title of defendants No.2 to 4 through 24 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 the Gift Settlement Deed under Ex.A.5 agreed the ownership of Defendants
No.2 to 4 and obtained the sale deed Ex.A.15 from the defendants No.2 to 5.
Hence, the plaintiff Nagamani having agreed the title of defendants No.2 to under gift deed Ex.A.5 by obtaining sale deed under Ex.A.15 from the donees
Defendants No.2 to 5 cannot deny the title of her vendor who are donees under
Ex.A.5 gift deed dated 15.06.2007 bearing document No.2133/2007 executed by defendant No.1. Plaintiff Nagamani cannot approbate and reprobate the said gift deed Ex.A.5. Therefore, she cannot claim such gift deed Ex.A.5 as null and void, having acted upon such title of her vendors.
32.If the gift deed under Ex.A.5 is a void document, then the sale deed under Ex.A.15 obtained by plaintiff Nagamani from her vendors, who are the donees under such gift deed Ex.A.5 i.e., defendants No.2 to 5, shall also become a void document. Plaintiff cannot blow hot and cold at the same time; on one hand accepting the title of defendants No.2 to 5 under Gift Deed and obtaining the sale deed Ex.A.15 and on the other hand to claim the gift deed of her vendors Defendants No.2 to 5 as null and void. Hence, this court is of the considered opinion that the plaintiff is not entitled for the relief, to declare the gift deed under Ex.A.5 executed by defendant No.1 in favour of Defendants
No.2 to 5 as null and void. Therefore, this issue is answered accordingly against the plaintiff.
33.Issue No.2 in O.S.No.606 of 2011:- Whether the plaintiff entered into an agreement of sale with defendant No.1
dated 09.12.1995 and entitled to seek the relief of specific performance of
contract?
25 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
The agreement of sale is marked as Ex.A.16 and to prove the same
PWs.1 and 2 are examined. PW.1 is the husband of plaintiff Nagamani. He is neither a party nor a witness to the said agreement. The attestors of the said agreement are DW.1 and PW.2. PW.2 examined on behalf of the plaintiff
Nagamani failed to furnish the particulars of the contract during his cross examination. And therefore, his evidence is not sufficient to prove the agreement of sale. DW.1 another attestor of Ex.A.16 denied the said agreement.
Plaintiff B. Nagamani failed to take steps to prove the signature of DW.1 on the agreement of sale Ex.A.16.
34.As rightly pointed out by the learned counsel for Defendant No.6, who is the plaintiff in O.S.No.340/2007, the agreement of sale under Ex.A.16 was executed on 09.12.1995. But, para 3 in page 2 of the said agreement shows that an amount of Rs.13,453/- was paid by the vendee to the vendor on 27.04.1996.
If the agreement of sale Ex.A.16 was actually executed on 09.12.1995, it is not possible to mention in such agreement about the future payment of Rs.13,453/- on 27.04.1996; the same was admitted by PW.1 in page No.3 of his cross-examination by stating that “It is true that the agreement of sale dated 09.12.1995 in which there is a recital regarding payment of MCH tax dated 27.06.1996 included as part of sale consideration”. It appears that the payment on 27.06.1996 was by mistake understood as the payment of MCH Tax and thereby the said suggestion was given. But, the reading of last 3 lines of para 3 at page 2 of the Agreement of sale dated 09.12.1995 (Ex.A.16) clearly shows 26 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 that Rs.13,453/- was paid by the vendor to the vendee on 27.04.1996 and paid
Rs.640.20ps to the MCH property tax. However, it is clear that Ex.A.16 agreement contains future date of payment on 27.04.1996, which is highly impossible to predict such future payment and mention in the agreement
Ex.A.16. No explanation was given by PW.1 on the said fact of mentioning future payment in the agreement of sale Ex.A.16.
35.Even the time of payment of sale consideration is not consistent between the pleadings of the plaint, evidence of PW.1 and contents of agreement of sale
Ex.A.16 and sale deed Ex.A.15. As per the Agreement of sale Ex.A.16,
Rs.2,27,416/- was paid on 24.04.1993, Rs.18,800/- was paid on 26.04.1993 and
Rs.13,453/- was paid on 27.04.1996. As per the plaint contents in O.S.No.606 of 2011, earlier to the agreement of sale dated 09.12.1995 on two occasions defendant No.1 and his other brothers and sisters entered into an agreement of sale with the plaintiff Nagamani in respect of the schedule property by receiving considerable amounts towards earnest money and as on 09.12.1995 (i.e. by the date of Ex.A.16) Defendant No.1 received a sum of Rs.2,61,309/- towards earnest money out of total sale consideration of Rs.4,00,000/- and on the insistance of Defendant No.1, plaintiff Nagamani and her husband paid a sum of Rs.25,000/- on 20.06.1997 and Rs.50,000/- on 01.04.2006 and
Rs.2,28,000/- on 07.11.2006. And thereby in total Defendant No.1 has received a sum of Rs.5,64,309/- from the plaintiff. Thus, the pleadings of plaint in
O.S.No.606 of 2011 clearly shows that the plaintiff and her husband paid a total
sum of Rs.5,64,309/- as on the date of filing the suit. But, cross-examination of 27 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
PW.1 by defendant No.6 on 09.12.2007 at the end of page 2 shows that PW.1 paid Rs.5,64,309/- towards the sale consideration to defendants No.2 to 5 on the date of registration of the sale deed dated 09.11.2012(Ex.A.15). On the other hand, the contents of sale deed Ex.A.15 shows that the entire sale consideration of Rs.5,64,309/- was received by the vendor under the agreement of sale by defendant No.1 vendee.
36.The learned counsel for plaintiff Smt. B. Nagamani contended that the executant of agreement of sale i.e., defendant No.1 did not enter into the witness box to deny the agreement Ex.A.16 and therefore, claims to draw an adverse inference. If the plaintiff discharges her initial burden of proving the agreement, then only the onus shifts on the executant to disprove the agreement of sale Ex.A.16. In the present case, as discussed above, the contents of the agreement itself are proved to be false and the plaintiff failed to prove the due execution of agreement of sale Ex.A.15.
37.Admittedly, no prior notice was issued by the plaintiff Smt. B. Nagamani prior to the institution of the suit and it is not proved, that the plaintiff was and is ready and willing to perform her part of contract and on the other hand, obtained sale deed under Ex.A.16 against part of the suit schedule property.
Therefore, I am of the considered opinion, that the plaintiff failed to prove the due execution of agreement of sale and therefore, she is not entitled to seek the relief of specific performance of contract. Hence, this issue is answered accordingly against the plaintiff.
28 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
38.Issue No.3 in O.S.No.606 of 2011:-
Whether the plaintiff is entitled for the relief of permanent injunction restraining the defendants from alienating the suit schedule property?
Admittedly, plaintiff obtained sale deed from defendants No.2 to 5 under the original of Ex.A.15 during the pendency of the suit and thereby she acquired title and ownership to the extent of the land purchased under Ex.A.15 sale deed. Plaintiff Nagamani having failed to prove the due execution of agreement of sale and found to be not entitled to seek the relief of specific performance of contract, against the remaining schedule property, she is not entitled for permanent injunction restraining the defendants from alienating the entire suit schedule property, other than the extent covered under the sale deed of the plaintiff B. Nagamani marked as Ex.A.15. Hence, this issue is answered accordingly.
39.Issue No.1 in O.S.No.340 of 2007:-
Whether the defendant No.1 executed agreement of sale on 09.08.2006 and received any consideration on that day and on 16.09.2007?
It is an undisputed fact that the plaintiff G. Jayender Babu is a tenant in the suit schedule property from 2001 onwards. Though defendants No.1 to 5 denied the fact of entering into an agreement of sale with the plaintiff
G. Jayender Babu and receiving Rs.3,00,000/- towards part sale consideration on 09.08.2006 and executing the agreement Ex.B.1 in the presence of witnesses, they indirectly admitted in para 11 of their common written statement about signing on a bond paper of Rs.100/- denomination in the month of August, 2006. Thus, it is clear that the signature of defendant No.1 on the 29 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 agreement of sale Ex.B.1 dated 09.08.2006 is not in dispute except denying the transaction under Ex.B.1.
40.Plaintiff Jayender Babu to prove the transaction under Ex.B.1 agreement deposed himself as DW.2 and examined the scribe and attesting witnesses of
Ex.B.1 as DWs.3 to 5 who totally supported the claim of the plaintiff and the contents of Ex.B.1 agreement. Though the scribe DW.3 did not subscribe his signature on Ex.B.1 as the scribe of document, he categorically deposed that the contents of Ex.B.1 are scribed by him as per the instructions of A. Shanker (D.1) and G. Jayender Babu (plaintiff). His evidence also shows that after preparing the document, defendant No.1 A. Shanker signed it after receiving the advance sale consideration of Rs.3,00,000/- and A. Vajramma (DW.4),
Sujatha and A. Prashanth signed the agreement as per the instructions of
A. Shanker and 2 other persons namely Mr. Eashwaraiah and L.V. Srinivas
Sastry as witnesses to the document. DW.3 in his cross-examination reiterated about scribing the agreement of sale Ex.B.1 on 09.08.2006 and that day it was happened to be Rakhi festival. He also stated that Ex.B.1 is executed for 115 sq.yards of the property in SRT No377. In the cross-examination of DW.3 by the learned counsel for defendants No.1 to 5, DW.3 admitted that in his presence the advance amount was paid by the plaintiff Jayender Babu to
Shanker(DW.1) on the date of Ex.B.1. This fact is supported by the contents of
Ex.B.1 agreement. Thus, nothing is elicited from the cross-examination of
DW.3 to disbelieve his evidence.
30 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
41.DW.4 (A. Vajramma) and one Sujatha are admittedly the wives of deceased brother of Defendant No.1. DW.1 also admitted the said relationship.
DW.1 in his cross-examination stated that they are having talking terms with
DW.4 and Sujatha who are related to him as aunts. But, he deposed in his cross- examination that he cannot examine them to disprove the agreement
Ex.B.1. Plaintiff Jayender Babu examined Vajramma as DW.4 and she also supported the claim of the plaintiff and the execution of Ex.B.1 agreement by defendant No.1 by receiving an amount of Rs.3,00,000/- towards advance sale consideration and she signing such agreement on 09.08.2006 as per the instructions of defendant No.1. She stated in her cross-examination dated 26.06.2018 conducted by the counsel for plaintiff Nagamani in O.S.No.606 of 2011 that the agreement of sale Ex.B.1 was executed for an extent of 115 sq.yards. Nothing is elicited from the cross-examination of DW.4 also to disbelieve the execution of Ex.B.1 agreement by defendant No.1 in her presence. DW.4 being the wife of the brother of defendant No.1 and having no animosity towards defendants No.1 to 5, I found no reasons for her to depose falsely against the defendants No.1 to 5.
42.DW.5 is the another attesting witness to the agreement Ex.B.1. His evidence also shows that Defendant No.1 signed and executed the agreement of sale on 09.08.2006 after receiving the advance sale consideration of
Rs.3,00,000/- and after that he signed the said document along with one
Srinivas Sastry as witness. He further deposed that the said document was also 31 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 signed by Vajaramma(DW.4), Sujatha and Prashanth as per the instructions of defendant No.1 in his presence. Cross-examination of DW.5 by the counsel for
Defendants No.1 to 5 reveals that this witness knew Defendant No.1 as his officemate and on his(D.1) behalf, he came on 09.08.2006 and signed as a witness on behalf of the defendant No.1. He identified Ex.B.1 as the agreement of sale. He deposed during the cross-examination for plaintiff Nagamni that he is not having any acquaintance with Jayender Babu(defendant No.6) in
O.S.No.606 of 2011 who is the plaintiff in O.S.No.340 of 2007 and he came to
give evidence on the request of the said Jayender Babu. He also deposed that he know that the agreement Ex.B.1 was executed for the sale of 115 sq.yards but he do not remember the exact house number purchased by Jayender Babu as per Ex.B.1. He also deposed that Rs.3,00,000/- was given as an advance and
Ex.B.1 was not signed by Defendant No.6 Jayender Babu in his presence. He stated that defendant No.1 A. Shanker is alive now and the negotiations regarding Ex.B.1 transaction was held finally in his presence on 09.08.2006.
Thus, the evidence of DW.5 also supports the case of the plaintiff that
Defendant No.1 executed the agreement of sale (Ex.B.1) in favour of the plaintiff by receiving an amount of Rs.3,00,000/- under receipt dated 16.09.2007 (Ex.B.2) towards advance sale consideration. Thus, the plaintiff discharged the burden of proving the execution of agreement of sale on 09.08.2016(Ex.B.1) and receipt dated 16.09.2007(Ex.B.2) and paying part sale consideration of Rs.2,00,000/- to DW.4 and A. Sujatha, wives of deceased brother of defendant No.1.
32 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
43.Defendants No.1 to 5, admitted DW.1 subscribing his signature but, denied the transaction by contending that the said signature of Defendant No.1 was obtained by the plaintiff for arranging a hand loan of Rs.3,00,000/- and such loan was not arranged by the plaintiff and that the plaintiff played fraud on them for the purpose of grabbing the property of the defendants. Defendants
No.1 to 5 did not give any reason for remaining silent without demanding the return of the signed document from plaintiff, when the alleged promised loan was not arranged. When the defendants No.1 to 5 are alleging that the plaintiff did not pay the rents from January, 2006 and committed willful defaulter of payment of rents from January, 2006 to September, 2007 @ Rs.2,000/- per month and thereby fell due of Rs.40,000/- towards arrears of rent, defendants approaching such defaulter to extend a hand loan of Rs.3,00,000/- by giving in advance a signed non-judicial stamp paper, appears to be quite unbelievable because, no prudent person will handover a signed Non-Judicial Stamp paper in advance to a person who is already a willful defaulter in paying the rents.
44.DW.1 only was examined on behalf of the defendants No.1 to 5. DW.1 is the one of executant of agreement of sale Ex.B.1 i.e. defendant No.2.
Defendant No.1 is alive, but, he did not choose to enter into the witness box.
Since the plaintiff discharged his burden of proving the agreement of Ex.B.1 and the receipt Ex.B.2, the onus shifts on to the defendants No.1 to 5 to disprove Exs.B.1 and B.2, but the defendants No.1 to 5 failed to discharge the onus shifted on to them. Moreover the executant of the agreement Ex.B.1 i.e., 33 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 defendant No.1 did not choose to enter into the witness box for the reasons best known to him. Therefore, an adverse inference is drawn against the defendants
No.1 to 5 for withholding the vital evidence of defendant No.1 to the effect that defendant No.1 executed agreement of sale Ex.B.1 by receiving advance sale consideration of Rs.3,00,000/- from the plaintiff and therefore, he is not dare enough to enter into the witness box to deny the execution of the said agreement. In the circumstances, this court is of the considered opinion that defendant No.1 executed agreement of sale Ex.B.1 on 09.08.2006 and received
Rs.3,00,000/- towards advance sale consideration on that day and as per his instructions plaintiff paid Rs.2,00,000/- to the wives of Defendant No.1’s brother i.e., DW.4 and Smt. A. Sujatha on 16.09.2007 under Ex.B.2 receipt towards their deceased husband’s share out of the sale consideration agreed under Ex.B.1. Hence, this issue is answered accordingly in favour of the plaintiff.
45.Issues No.2 and 3 in O.S.No.340 of 2007:-
Issue No.2: Whether the plaintiff is ready and willing to perform his part of contract at all the material parts of the time?
Issue No.3: Whether the plaintiff is entitled for the specific performance of contract?
The evidence of DW.2 supported by Ex.B.1 agreement of sale, Ex.B.2 receipt, Ex.B.4 legal notice dated 06.06.2007, postal receipts Ex.B.5 and returned postal envelops under Ex.B.7 shows that the plaintiff is ready and willing to perform his part of contract at all material parts of time. Nothing is 34 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011 elicited from the cross-examination of DW.2 to prove that he was not ready and willing to perform his part of contract. In the legal notice dated 06.06.2007 marked as Ex.B.4 plaintiff demanded defendant No.1 to execute and register sale deed in respect of the suit schedule property by receiving the balance sale consideration of Rs.11,00,000/- and after that Defendant No.1 executed gift settlement deed under Ex.A.5 in favour of his sons Defendants No.2 to 5 on 15.06.2007. Though, the registered post covers were returned, the legal notice was also sent by the plaintiff to defendant No.1 Under Certificate of Posting as seen from Ex.B.6. Therefore, there is nothing to show that the plaintiff was not ready to perform his part of contract under the agreement of sale Ex.B.1.
Plaintiff after demanding the execution of sale deed filed the present suit
O.S.No.340 of 2007. Since the agreement of sale Ex.B.1 and the payment of
Rs.2,00,000/- under Ex.B.2 is proved by the plaintiff, the plaintiff is entitled to seek specific performance of the contract. Hence, these two issues are answered in favour of the plaintiff.
46.Issue No.4 in both suits i.e., O.S.No.606 of 2011 and O.S.No.340 of 2007:-
To what relief?
In the result, O.S.No.606 of 2011 is dismissed with costs and
O.S.No.340 of 2007 is decreed with costs directing the defendants No.1 to 5 to
execute and register sale deed in favour of the plaintiff G. Jayender Babu by receiving the balance sale consideration of Rs.11,00,000/- (Rupees Eleven
Lakhs only) within three months from the date of decree. If the defendants 35 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
No.1 to 5 failed to execute and register the sale deed against the suit schedule property, the plaintiff is entitled to obtain the same through the process of law.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by me in
the open Court, on this 25th day of January, 2019.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses examined
For Plaintiff in O.S.No.606 of 2011( Defendant No.6 in O.S.No.340 of 2007):-
PW.1: Bollam Lingaiah. PW.2: K. Anji Reddy.
For Defendants No.1 to 5 in both the suits:
DW.1: A. Srinivas.
For Defendant No.6 in O.S.No.606 of 2011(plaintiff in O.S.No.340/2007):-
DW.2: G.Jayender Babu(Defendant No.6 in O.S.No.606/2011 and plaintiff in
O.S.No.340/2007).
DW.3: Pulluri Nagaraju.
DW.4: Smt. A. Vajramma. DW.5: R. Eshwaraiah. DW.6: A. Srinivas.
DOCUMENTS MARKED
For Plaintiff in O.S.No.606 of 2011(Defendant No.6 in O.S.No.340 of 2007):-
Ex:A.1:G.P.A dated 18.10.2011.
Ex.A.2:Cash receipt dated 01.04.2006.
Ex.A.3:Cash receipt dated 17.11.2006(subject to objection).
Ex.A.4:Certified copy of the sale deed dated 22.05.2007.
Ex.A.5:Certified copy of the Gift Settlement Deed dated 15.06.2007.
Ex.A.6:Telephone bill dated 11.08.1998.
Ex.A.7:Telephone bill dated 11.12.1997.
36 Common Judgment in O.S.No.340/2007 and O.S.No.606/ 2011
Ex.A.8:Telephone bill dated 11.12.1995.
Ex.A.9:Telephone bill dated 08.06.2007.
Ex.A.10: E.C dated 16.07.2007.
Ex.A.11: Property tax receipt dated 24.08.1993.
Ex.A.12: Property tax receipt dated 24.08.1993.
Ex.A.13: Property tax receipt dated 11.09.1998.
Ex.A.14: Copy of the Order dated 12.07.1996 issued by the Commissioner of Labour.
Ex.A.15: Certified copy of the Sale Deed dated 09.11.2012(subject to objection).
Ex.A.16: Agreement of Sale dated 09.12.1995.
Ex.A.17: Cash receipt dated 20.06.1997.
For Defendant No.6 in O.S.No.606 of 2011(plaintiff in O.S.No.340/2007):
Ex.B.1:Agreement of sale dated 09.08.2006.
Ex.B.2:Receipt dated 16.09.2006.
Ex.B.3:Encumbrance certificate dated 06.06.2007.
Ex.B.4:Office copy of the legal notice dated 06.06.2007.
Ex.B.5:Postal receipts dated 07.06.2007.
Ex.B.6:UCP receipts dated 07.06.2007.
Ex.B.7:Returned covers (2 Nos) dated 12.06.2007.
Ex.B.8:Valuation certificate dated 27.06.2007.
XI ADDITIONAL CHIEF JUDGE,
CITY CIVIL COURT, HYDERABAD.