Dr. T. Srinivasa Rao

Page No. 1 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

KHAMMAM

Friday, this the 18th day of November, 2022.

Present: Dr.T.Srinivasa Rao,

Principal District Judge,

Khammam, FAC, II Additional District Judge, Khammam.

O.S.No.26 of 2012, O.S.No.49 of 2016, O.S.No.50 of 2016 and

O.S.No. 51 of 2016

O.S.No.26 of 2012:

Between:

1.Mylavarapu Kondal Rao (Died), L.Rs, 2.Mylavarapu Annapurnamma, W/o late Pitchaiah, Aged 80 years, Occu:House hold, R/o Sriram Hills, Khammam City and District. 3.Mylavarapu Aruna, W/o late Kondal Rao, Aged 48 years, Occu:House hold, R/o Sriram Hills, Khammam. 4.Mylavarapu Sravan Kumar, S/o late Kondal Rao, Aged 28 years, Occu:Business, R/o Sriram Hills, Khammam City. 5.Mylavarapu Uday Kumar, S/o late Kondal Rao, Aged 24 years, Occu:Business, R/o Sriram Hills, Khammam City. 6.Kothuri Amulya, D/o late Kondal Rao, Aged 25 years, Occu:House hold, R/o Sriram Hills, Khammam City.

(Plaintiffs No.2 to 6 were added as per orders in I.A.No.919/2017 dated 17.11.2017)

…..Plaintiffs in O.S.No.26/2012.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Podila Subhadra (Died), L.Rs.,

Page No. 2 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 5.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 6.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 7.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 8.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 9.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, (Defendant No.3 is added as per orders in I.A.No.189/2014 dated 03.06.2015) (Defendant Nos.4 to 9 as L.Rs. of defendant No.3 are added as per orders in I.A.No.3/2021, dated 23.11.2021)

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…..Defendants.

O.S.No. 49 of 2016:

Between:

1.Podila Subhadra (Died), L.Rs., 2.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 3.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 4.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 5.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 6.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 7.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture,

Page No. 3 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…...Plaintiffs in O.S.No.49 of 2016.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Kummarikuntla Vallikumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Defendants in O.S.No.49 of 2016.

O.S.No.50 of 2016:

Between:

Kummarikuntla Padmavathi, W/o Kumaraswamy, Aged 65 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Plaintiff in O.S.No.50 of 2016.

And

1.Podila Yadagiri Narasimha Rao, S/o Bikshamaiah, Aged 50 years, Occu:Railway Police Constable, R/o Tekulapalli village, Khammam Urban Mandal, Khammam District. 2.Podila Papa Rao, S/o Bixamaiah, Aged 40 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 3.Podila Muralikrishna, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 4.Podila Srinivasa Rao, S/o Bixamaiah, Aged 32 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 5.Podila Linga Raju, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/ o Nagaram, 2nd Line, Srinagar Colony, Khammam Town. 6.Podila Sasi Kumar, S/o Bixamaiah, Aged 30 years, Occu:Agriculture, R/ o Srinagar Colony, 1st Line, KhammamTown. 7.Bandi Sekhar, S/o late Butchaiah, Aged 30 years, occu:Real Estate Agent, R/o Near Anjaneyaswamy Temple, Tekulapalli, Khammam Urban Mandal, Khammam District. ….Defendants in O.S.No.50/2016.

Page No. 4 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.51 of 2016:

Between:

Kummarakuntla Valli Kumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam Town and District. ….Plaintiff in O.S.No.51/2016.

And

Seelam Venkateswarlu, S/o Narsaiah, Aged 61 years, Occu:Agriculture, R/o H.No.4-4-121, Guttala Bazar, Khammam Town and District. ….Defendant in O.S.No.51/2016.

These suits are coming before me for final hearing on 01.11.2022 in the presence of Sri K.P.Satyanarayana Rao, Advocate for Plaintiffs in

O.S.No.26/2012, Sri Mittapalli Srinivasa Rao, Advocate for Defendant

No.1, Defendant No.2 remained exparte and that of Sri B.Kalyan Rao, Advocate for Defendant No.3 in O.S.No.26/2012; Sri B.Kalyan Rao, Advocate for plaintiffs in O.S.No.49/2016, Defendant No.1 remained exparte and that of Sri V.N.Hanumantha Rao, Advocate for Defendant Nos.2 and 3 in O.S.No.49/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.50/2016, Sri B.Kalyan Rao, Advocate for Defendant Nos.1 to 6 and Defendant No.7 remained exparte in O.S.No.50/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.51/2016 and that ofSri Mittapalli Srinivasa Rao, Advocate forDefendant in

O.S.No.51/2016; upon perusing the material papers on record; upon

hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:

COMMON JUDGMENT

Suit in O.S.No.26/2012 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of the agreement of sale dated 13.02.2018 directing the defendant No.1 to execute registered sale deed in respect of the suit schedule property by

Page No. 5 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

receiving balance sale consideration; to declare the registered sale deed bearing document No.P323/2008 dated 12.11.2008 executed by 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff; to execute registered sale deed in respect of the suit schedule property through process of court, in case of defendant No.1 fails to execute the registered sale deed in favour of the plaintiffs and for awarding costs of the suit.

2. Suit in O.S.No.49/2016 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of agreement of sale dated 2.4.2007 in respect of the suit schedule property directing the defendants to execute valid registered sale deed in favour of the plaintiffs, to grant perpetual injunction, restraining the defendant

Nos.1 to 3, their men and any other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for awarding costs of the suit.

3. Suit in O.S.No.50 of 2016 is filed by the plaintiff against the defendants seeking perpetual injunction, restraining the defendants, their men, agents, servants and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for awarding costs of the suit.

Page No. 6 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4. O.S.No.51/2016 is a suit filed by the plaintiff seeking specific performance of contract against the defendant in pursuance of the oral agreement of contract dated 24.09.2004 directing the defendant to execute valid registered sale deed in respect of the suit schedule property, in case of failure of defendant, to execute the registered sale deed through process of law by the court in respect of the suit schedule property and for awarding costs of the suit.

5. The averments of the plaint in O.S.No.26 of 2012, in brief; are that:

i) Defendant No.1 has offered to sell the suit schedule property i.e., agricultural land measuring to an extent of Ac.1.12 ½ gts in

Sy.Nos.208/A, 208/I and 208/O of Khanapuram Haveli and the plaintiff accepted to purchase the same for a total sale consideration of

Rs.1,12,50,000/- in lumpsum. Accordingly, defendant No.1 had executed an agreement of sale dated 13.02.2008 in favour of the plaintiff for sale of said land and on the same day, the defendant had received an amount of Rs.28,12,500/- towards advance sale consideration and the said agreement of sale was duly attested. Thereafter, the plaintiff has paid

Rs.5,00,000/- on 15.04.2008, Rs.10,00,000/- on 8.5.2008 and

Rs.5,00,000/- on 2.6.2008, Rs.8,00,000/- on 28.7.2008, Rs.5,00,000/- on

Page No. 7 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

27.9.2008, Rs.9,00,000/- on 11.10.2008, Rs.10,00,000/- on 6.11.2008,

Rs.7,00,000/- on 11.11.2008 and Rs.10,00,000/- on 18.12.2008 to the 1st defendant towards balance sale consideration. Thus, in all the plaintiff has paid total amount of Rs.97,12,500/- by 18.12.2008 to the defendant

No.1 under the said agreement of sale and all the payments made by plaintiff were acknowledged by the defendant No.1 on the reverse of the said agreement of sale.

ii) The 1st defendant did not come forward to execute registered sale deed by receiving balance sale consideration, in spite of several demands by plaintiff and therefore the plaintiff got issued legal notice on 10.1.2011 demanding the 1st defendant to execute registered sale deed by receiving balance sale consideration and having acknowledged the same, the 1st defendant got issued reply notice on 28.01.2011 admitting the fact of execution of said agreement of sale and receipt of Rs.97,12,500/-. But surprisingly and malafidely the 1st defendant had taken a plea that the land measuring Ac.1.00 gts covered by the said agreement of sale dated 13.02.2008 was conveyed in favour of Smt.Kummarikuntla Padmavathi, mother-in-law of the plaintiff, alleging that he has done so, at the request of brother-in-law of the plaintiff and further alleged that plaintiff has no capacity to pay remaining sale

Page No. 8 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration, which is absolutely false and baseless. Therefore, the plaintiff got issued reply notice dated 17.02.2011 to the reply notice dated 28.1.2011 got issued by 1st defendant, denying the said allegations.

iii) There is no truth in the plea by 1st defendant that the said registered sale deed was executed in favour of Kummarikuntla

Padmavathi (defendant No.2) at the instance of the plaintiff’s brother-in- law and the same was false and baseless. The further allegation that plaintiff’s wife and plaintiff’s brother-in-law came to the Registrar Office and that at the request of plaintiff the said sale deed was executed in favour of defendant No.2 etc., are false and baseless. None of the persons mentioned in rejoinder notice dated 28.01.2011 in para No.5 attested the sale deed executed by 1st defendant and the entire story was created by the 1st defendant to deprive the plaintiff’s legitimate right to obtain registered sale deed in respect of the suit schedule property under the agreement of sale dated 13.02.2008.

iv) The plaintiff is no way concerned with the said transaction done in favour of 2nd defendant by 1st defendant and as such the question of plaintiff returning the original agreement of sale dated 13.02.2008 executed by 1st defendant in favour of plaintiff does not arise. The plaintiff has got capacity to pay the balance sale consideration and is ever ready

Page No. 9 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

and willing to perform his part of contract and is entitled to enforce the said agreement of sale dated 13.02.2008 against the defendant having already parted with huge amount of Rs.97,12,500/-. As such, the plaintiff is entitled to sue and the defendants are liable to be sued on the account of agreement of sale dated 13.02.2008. As there is no hope of 1st defendant coming forward to execute registered sale deed, the plaintiff is compelled to file this suit for specific performance of contract.

6. i) On the other hand, defendant No.1 in O.S.No.26/2012 filed written statement, denying the plaint averments and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation. Plaintiff did not approach the court with clean hands and he is not entitled for equitable relief of specific performance of agreement basing on the alleged agreement of sale dated 13.02.2008 to sell the suit schedule property and that defendant No.1 received

Rs.97,12,500/- by way of deferred payments, but the said amount is not entirely from plaintiff. The plaintiff made several demands to execute registered sale deed by receiving balance sale consideration is invented and that the legal notice dated 10.01.2011 got issued by plaintiff, with incorrect allegations and defendant No.1 got issued reply dated 28.01.2011 through M.Nageswar Rao, Advocate.

Page No. 10 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) It is further contended that one K.Srinivasa Rao, who is brother-in-law of plaintiff, is neighbour after three houses to defendant

No.1 and he is closely acquainted. Bargain to purchase the suit schedule land, was settled by said K.Srinivasa Rao and plaintiff, for consideration of Rs.1,12,50,000/- and agreement of sale dated 13.02.2008 was executed with stipulation to pay balance sale consideration within five months. But the amount of consideration could not be paid in time due to their financial constraints. In fact, the plaintiff alone has no financial capacity to pay such huge amount. After paying an amount of

Rs.10,00,000/- on 18.12.2008 the plaintiff and his brother in law

K.Srinivasa Rao, expressed their inability to pay balance consideration and proposed to execute registered sale deed for proportionate extent of land for total amount of Rs.97,12,500/- paid to defendant No.1 till 18.12.2008. Accordingly, a registered sale deed No.1323/2008 dated 12.11.2008 was got executed in favour of Smt.Kummarikuntla

Padmavathi for an extent of Ac.1.00 gts. Said Kummarikuntla

Padmavathi is none other than the mother-in-law of plaintiff and mother of K.Srinivasa Rao. It may not be out of place to mention that defendant

No.1 can register the property in parts, in plots or en-block, in the name of plaintiff or in the name of other persons at the option of plaintiff, as per

Page No. 11 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

terms of the agreement of sale dated 13.02.2008. Out of good faith and bonafide belief, defendant No.1 executed said registered sale deed in the name of Kummarikuntla Padmavathi. Above registration was kept pending by registering authorities as valuation was disputed to save stamp duty. Another agreement of sale with ante date allegedly dated 13.10.2006 was also obtained in the name of Kummarikuntla

Padmavathi, for a consideration of Rs.12,00,000/- from defendant No.1 to support their family members who were actively involved in the above affairs.

iii) There is a discrepancy in respect of availability of Ac.1.12 ½ gts of suit schedule property. An extent of Ac.0.04 gts of land was alienated by defendant No.1 to one Podila Subhadra, W/o Bikshmaiah, who are neighbouring land owners on southern side of suit schedule property through agreement of sale in the year, 2007. Plaintiff and

K.Srinivasa Rao to make use of NSP land abutting to suit schedule land on northern side, have purposefully got mentioned the boundary allegedly as land alienated by defendant No.1 to one Kummarikuntla Valli

Kumari. Said Valli Kumari is none other than wife of K.Srinivasa Rao.

The plaintiff and his brother-in-law K.Srinivasa Rao, malafidely trying to take undue advantage of agreement of sale dated 13.02.2008 retained

Page No. 12 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

by them and northern boundary allegedly mentioned as land of

Kummarikuntla Vallikumari and filed above suit and also

O.S.No.259/2011 on the file of Senior Civil Judge’s Court, Khammam

against defendant No.1 seeking specific performance of oral agreement of sale. Defendant No.1 cannot have any objections, if plaintiff is desirous to get the registered sale deed executed in his favour by cancellation of registered sale deed No.323/2008 dated 23.10.2010 executed in favour of defendant No.2, his mother-in-law. It is pertinent to mention here that said sale deed No.P323/2008 is devoid of consideration and it was executed for the consideration of Rs.97,12,500/- paid till 18.12.2008 on agreement of sale dated 13.02.2008. Considering the above, conspicuous silence on the part of plaintiff, having paid

Rs.97,12,500/- by 18.12.2008 and seeking performance of agreement of sale dated 13.02.008 after lapse of nearly three years, does not inspire any confidence. Plaintiff and said K.Srinivasa Rao in connivance with defendant No.2 and Kummarikuntla Padmavathi, intended to gain wrongfully by blackmailing tactics, under the guise of agreement of sale

dated 13.02.2008, remained with them by chance. Finally defendant

No.1 prayed to dismiss the suit with exemplary costs.

Page No. 13 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

7. i) Defendant No.3 filed written statement, denying the plaint averments and further contending that the above suit is not maintainable either in law and on facts, Plaintiff alleging to have paid huge amount of

Rs.97,12,500/- under agreement of sale dtd. 18-12-2008 and kept silent till fag end of (3) years, does not inspire confidence. Such inordinate delay precludes plaintiff for grant of relief of specific performance. This defendant is not aware of alleged agreement of sale dt.18-12 2008, executed in favour of plaintiff by defendant No.1. Plaintiff is closely related to defendant No.2, who is none other than her son-in-law. One

Kummarikuntla Padmavathi is daughter-in-law of defendant No.2.

Defendant No.1 is close family friend of plaintiff, defendant No.2 and son of defendant No.2 namely Kummarikuntla Sreenu, defendant No.1 and 2 live in nearby houses. Defendant No.1 is said to own Ac.1.12 gts, of land in Sy.No.208/A, 1 & O, which was purchased through registered sale deed No.7635/2004 dated 23-06-2004. Said land of defendant No.1 is situated on northern side of land of this defendant No.3 and her husband late Podila Bikshamaiah i.e., Ac.1.04 gts, in Sy.No.206, 207 of

Khanapuram Haveli. Defendant No.3 and her husband bonafidely purchased a triangular piece of Ac.0.04 gts, of land from defendant No.1 through an agreement of sale dt.02-04-2007, for a consideration of Rs.2

Page No. 14 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

lakhs. Defendant No.3 paid Rs.50,000/- on 02-04-2007, Rs.30,000/- on 30-06-2007 and Rs.1 lakh on 20-07-2007 to defendant No.1. Defendant

No.1, he endorsed receipt of said on amounts of part of sale consideration on reverse of agreement of sale, defendant No.1 delivered possession over said Ac.0.04 gts, in favour of defendant No.3. Said

Ac.0.04 gts, of land is advantageous for defendant No.3, to get northern boundary of her land, a straight one. Subsequently, defendant No.1 suffered heart ailment and with other health problems. Defendant No.3 in good faith believed defendant No.1 in postponing execution of registered sale deed time and again, on pretext of said ill health. However defendant No.1 delivered possession of said Ac.0.04 gts, of land in

Sy.No.208 of Khanapuram Haveli, in favour of this defendant No.3, on 20-07-2007. Defendant No.3 got laid stone planks around boundary for their Ac.1.08 gts, land including Ac.0.04 gts, of land purchased from defendant No.1. Defendant No.3 in her own right has let out said land of

Ac.1.08 gts, in the year 2010 to one Cheepu Veeraiah for marble and granite business under the name and style as M/s Venkateswara Marble and Granite.

ii) While things stood thus, at first instance, defendant No.2 herein filed a suit for perpetual injunction vide OS.No.200/2011 on the file

Page No. 15 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of court of learned Senior Civil Judge, Khammam, against sons (6 No.s) of this defendant No.3 and one Bandi Sekhar. It was alleged that defendant No.2 herein is owner of Ac.1.00 of land in Sy.No.208/1, O, which was contended to be purchased from defendant No.1 herein through a registered sale deed (pending) No.P.323/2008 dated 18-12- 2008. Said Ac.1.00 gts of land of defendant No.2, claimed on north of land of husband of this defendant No.3, namely late Podila Bikshamaiah.

Defendant No.2 contended that, sons of this defendant No.3 tried to interfere with her Ac.1.00 gts of land. Defendants No.1 and 2 in connivance premeditatedly got referred an agreement of sale dt.13.10.2006 in recitals of said sale deed and mentioned incorrect boundary on north. Defendant No.2 filed a separate petition in

IA.No.843/2011 in OS.No.200/2011 for interim injunction and while

granting interim injunction learned Senior Civil Judge, Khammam, held that, respondents therein, who are sons of defendant No.3 herein can seek necessary legal remedy in the event of defendant No.2 herein, tries to interfere with land of defendant No.3 herein.

iii) It is also transpired that, another suit in OS.No.259/2011 on the file of Court of Senior Civil Judge, Khammam, was conclusively filed by one Kummarikuntla Valli Kumari, who is daughter-in-law of defendant

Page No. 16 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.2 herein, against defendant No.2 herein for specific performance to execute registered sale deed for Ac.0.12 gts of land in Sy.No.208/A, alleging oral agreement of sale purportedly on 24-09-2004. Said

OS.No.259/2011 was filed to countenance OS.No.200/2011. Plaintiff

herein is the person behind in filing above OS.No.200/2011 and

OS.No.259/2011. Though not admitting, defendant No.3 or any of her

family members do not have knowledge about alleged sale transactions in favour of plaintiff nor in favor of defendant No.2 and in favor of said

Kummarikuntla Valli Kumari, prior to filing of above respective suits. The extents of land in above OS.No.200/2011 and in OS.No.259/2011 are more than the extent of land physically available and own by defendant

No.1. In order to secure her interests and rights over Ac.0.04 gts, of land based on agreement of sale dt.02-04-2007, executed by defendant No.1, this defendant No.3 filed OS.No.223/2012 on the file of learned Senior

Civil Judge, Khammam, for specific performance to execute registered

sale deed, against defendants No.1 and 2 herein and Kummarikuntla

Valli Kumari, who is daughter in law of defendant No.1 and plaintiff in

OS.No.259/2011. Above circumstances manifestly explain that, plaintiff

herein, defendants No.1 and 2 are purposefully inventing litigation to deprive possession and interests of defendant No.3 over her Ac.0.04 gts.

Page No. 17 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

In furtherance of said object, above suit is filed as an afterthought based on alleged agreement of sale dt.18-12-2008. Considering the same suit relief for specific performance is frivolous and without any justification.

Plaintiff did not approach the Court with clean hands and he is not entitled for equitable relief of specific performance. More so, filing of above suit is abuse of process of court and prayed to dismiss the suit with costs.

8. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether defendant No.1 offered to sell land to an extent of Ac.1.12 ½ gts in Sy.No.208/A, 208/I and 208/O of Khanapuram Haveli to the plaintiff?

2.Whether defendant No.1 executed agreement of sale dated 13.02.2008 in favour of plaintiff by receiving Rs.28,12,500/- towards advance sale consideration? 3.Whether the plaintiff is the person behind filing of suit in

O.S.No.200 of 2011 and O.S.No.259 of 2011?

4.Whether the plaintiff is entitled to the relief as prayed for? 5.To what relief?

9. Subsequently, on the basis of amendment made to the plaint and in view of the additional evidence filed by the defendants, the following additional issue is framed on 02.03.2022.

Page No. 18 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Additional Issue:

“Whether the plaintiff is entitled for return of earnest money advance amount as prayed for?

10. At the time of trial, P.Ws.1 and 2 were examined and Exs.A1 to A7 are marked on behalf of plaintiff. On behalf of the defendants,

D.Ws.1 to 4 were examined and Exs.B1 to B9 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

11. The averments of the plaint in O.S.No.49 of 2016, in brief; are that:

i) That plaintiff and her husband late Bikshmaiah own land in

Sy.No.206 & 207 of Khanaapuram Haveli, Khammam (U) (M) & District of 110 ft. width By-pass road situated to south of said land of plaintiff and her husband. Land of defendant No.1, in Sy.No.208 is situated on north abutting to lands of plaintiff and her husband. An extent of Ac 0.04 gts, of triangular piece of land of defendant No.1, was purchased by plaintiff to set even dimensions of their previously existing land in Sy.No.206 & 207.

Bargain was settled for a consideration of Rs.2 lakhs; plaintiff paid

Rs.50,000/- to defendant as advance, an agreement of sale dt.02.04.2007 was executed by defendant No.1. Subsequently, plaintiff paid Rs.50,000/- on 30-06-2007 and Rs.1,00,000/- on 20-07-2007 to

Page No. 19 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

defendant towards part payment of consideration. Defendant acknowledged receipts of said part payments on reverse of agreement of sale. Further, on 20-07-2007 defendant No.1 delivered possession of said

Ac.0.04 gts, of land in part performance of agreement of sale and endorsed to the said effect on reverse of agreement of sale. Since then plaintiff has been in possession of Ac.0.04 gts, alienated by defendant, included in their land in Sy.No.206 & 207, constituting a compact block of

Ac.1.08 gts.

ii) Original agreement of sale dt.02-04-2007 executed by defendant No.1 in favour of plaintiff was filed in OS.No.200/2011 on the file of this Court. Subsequently defendant No.1 suffered heart ailment and also with other health problems. Plaintiff believed defendant in postponing execution of registered sale deed time and again, on the pretext of said ill health. Defendant made plaintiff to believe that, he has Ac.1.12 gts, of land to the north of land of plaintiff and her husband (in Sy.No.206 &207) at the time of entering in to agreement of sale dt.02-04-2007. However, plaintiff has been in possession of said Ac.0.04 gts, of land in Sy.No.208 of Khanapuram Haveli, which is suit schedule property. Rough sketch of suit schedule property is submitted for better appraisal. That, husband of plaintiff, died about 12 years back. Plaintiff and her sons have leased

Page No. 20 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

their land of Ac.1.08 gts, for past about more than one year, to one

Cheepu Veeresham, who is running marble and granite business in the name and style as M/s Venkateswara Marble & Granites. Along length of boundary of Ac.1.08 gts, plaintiff erected stone planks signifying their ownership and physical possession over the property, which include

Ac.0.04 gts, of suit schedule property.

iii) While things stood thus, defendant No.2 filed

OS.No.200/2011 on the file of this Court against sons of plaintiff for

injunction alleged to have purchased one acre of land from defendant

No.1 in Sy.No.208/E and 208/O and defendant No.2 and her sons tried to encroach in to part of Ac.0.04 gts, of land purchased by plaintiff from defendant No.1 i.e., suit schedule property. Defendant No.2 contended that, suit schedule property is part of alleged Ac.1.00 of land purchased sons, for perpetual injunction, alleging to by her from defendant No.1 through registered sale document No.P/323/2008 dt.12-11 2008.

Defendant No.2 filed a separate petition in IA.No.843/2011 seeking interim injunction in respect of suit schedule property herein. Further, the said injunction petition which was allowed by this Court on 22-07-2011, with a finding that, respondent therein, who is plaintiff herein to seek necessary legal remedy in the event petitioner therein defendant No.2

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herein, tries to interfere with land of plaintiff herein. Defendants No.1 and 2 in connivance have fraudulently brought up an agreement of sale with ante dated 13-10-2006, to defeat interests of plaintiff over suit schedule

Ac0.04 gts, of land purchased by her through agreement of sale dt.02-04 2007, Northern boundary for alleged Ac.1.00 of land related to agreement of sale dt.13 20-06 of defendant No.2 and sale document No.1211/2008 was motivatedly and vaguely mentioned as "land of defendant No.3".

iv) Defendant No.3 is none other than daughter in law of defendant No.2. That it is also transpired that, defendants No.1 and 2 collusively got filed another suit, OS.No.259/2011 on the file of this Court, by defendant No.3 against defendant No.1 for specific performance to execute registered sale deed for Ac.0.12 gts, of land alleging oral agreement of sale dt.24-09-2004 to countenance defence of plaintiff herein in IA.No.843/2011 in OS.No.200/2011. It took time to obtain certified copy of plaint in OS.No.259/2011 with permission. Above circumstances emulate that, defendants No.1 to 3 are purposefully inventing litigation to deprive possession and interests of plaintiff over suit schedule land of Ac.0.04 gts, under the guise of incorrect descriptions of property in their documents. Further it is to be ascertained, whether

Ac.1.12 gts of land available for defendant No.1 even after alienating

Page No. 22 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ac.0.04 of land in favour of plaintiff. That, plaintiff took legal notice dt.20- 09-2011 demanding defendant No.1 to execute registered sale deed in respect of suit schedule property. Defendant No.1 acknowledged receipt of legal notice on 28-09-2011 but failed to comply with the same. In the said circumstances, plaintiff cannot get a registered sale deed executed by defendant No.1 and can secure her possession in respect of suit schedule property, without legal course.

12. Defendant No.1 remained exparte.

13.Defendants No.2 and 3 filed common written statement, denying the material allegations made in the plaint and further contending that defendant No.2 in this suit filed 0.S.No.200/2012 on the file of this court against Podila Yadagiri Narasimha Rao, Podila Papa Rao, Podila

Muralikrishna, Podila Srinivasa Rao. Podila Linga Kaju sixamaiah, Podila

Sasi Kumar and one Bandi Sekhar for perpetual injunction, when they tried to encroach into the land in suit schedule property in

O.S.No.200/2011 and they falsely pleaded that defendant No.1 in this suit

executed an agreement of sale in favour of their mother for an extent of

Ac.0.04 gts of land in Sy.No.208/A, I, O. and filed the alleged agreement of sale in the said suit O.S.No.200/2011. That in I.A.No.843/2011 in

Page No. 23 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.200/2011 after hearing both sides, this court passed interim

injunction in favour of defendant No.2 in this suit, who is the plaintiff in

O.S.No.200/2011.

14. That having taken a false plea in O.S.No.200/2011, now the defendants 1 to 6 got this suit filed by their mother Smt.P.Subhadra, who does not know anything about the false pleas taken by her sons. The so- called agreement of sale dated 2.4.2007 is brought into existence in collusion with the defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. The defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. Defendant No.1 with hostile attitude towards defendant Nos.2 and 3 in this suit colluded with the plaintiff and her sons making a false pleas that he had sold an extent of

Ac.0.04 gts of land. The boundaries shown in the suit schedule property in their suit are not existent and there are no such boundaries on the spot and the defendant No.1 has no land with such boundaries as described by him or the plaintiff. The entire effort of the plaintiff and her sons is to grab Ac.0.40 gts of land from the possession of this defendant No.2 out of the suit schedule property in O.S.No.200/2011 on the file of this court.

The plaintiff is not entitled to any relief much less injunction. Defendant

Page No. 24 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.1 having sold his entire land in favour of these defendants is left with no land, as such, he cannot execute any agreement of sale is a false and baseless document. The plaintiff has approached the court with unclean hands and therefore she is not entitled to the suit claim. The plaintiff has no cause of action to file the suit and the suit is barred by limitation.

Finally, the defendants 2 and 3 prayed to dismiss the suit.

15. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the agreement of sale is true and valid? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree? 4.Whether the plaintiff is entitled for injunction? 5.To what relief?

16. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A8 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

17. The averments of the plaint in O.S.No.50/2016, in brief are that:

Page No. 25 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

i) The plaintiff is the owner and possessor of agricultural wet land measuring to an extent of Ac.1.00 gts i.e., Ac.0.20 gts in Sy.No.208/1 and Ac.0.20 gts in Sy.No.208/O, in single compact block situated at

Khanapuram Haveli, Khammam Urban Mandal, Khammam District, which is the suit schedule property. The plaintiff purchased the suit schedule property from erstwhile owner Seelam Venkateswarlu for the suit most respectfully for valid consideration through registered sale deed dated 12.11.2008 and registered on 18.12.2008 at the Joint Sub-Registrar

Office, Khammam. The Joint Sub-Registrar, Khammam has given document vide pending Registration No.323/2008, as the plaintiff disputed the valuation made by Joint Sub-Registrar Khammam.

Considering the dispute raised by the plaintiff, the District Registrar,

Khammam agreed to decrease the value of said land purchased by plaintiff i.e., suit schedule property by 20% and the plaintiff had paid the same and the proceedings were issued by the Joint Sub-Registrar, accepting the document for Registration and it was duly Registered and according to the Joint Sub-Registrar, Khammam, the Registered document will be returned to the plaintiff in due course after the approval is given by the competent authority and the proceedings issued by the

District Registrar, Khammam.

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ii) That the plaintiff applied for Certified copy of the said pending Registered document for filing the same in the suit and accordingly Joint Sub-Registrar, Khammam has issued Certified copy of sale deed through which the plaintiff has purchased the suit schedule property. The Plaintiff undertakes to file the original Registered Sale deed as and when it is made available to her by Joint Subs Registrar,

Khammam at the earliest possible time. The plaintiff having purchased the suit schedule property is in peaceful possession and enjoyment of the same and the land is an agricultural land. But the same is kept fallow in view of the urbanization of the area presently, as many marble shops have been set up and now it is some what difficult to cultivate land. The defendants claiming to be neighbouring land owners, are trying to encroach upon the said land of the plaintiff without any sort of right. The plaintiff with a view to protect her property is erecting a barbed wire fencing around the suit schedule property in the month of October 2010 and the defendants made an attempt to interfere with the activities of erection of barbed wire around the suit schedule property. Since then repeatedly either the defendants or their men are making attempts to pull down the barbed wire fencing pillars erected by the plaintiff and the plaintiff could resist their illegal acts. The defendants are in a view to

Page No. 27 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

chase away the plaintiff from suit schedule property with malafide intention of knocking away the suit schedule property for a throw away price as the plaintiff is a helpless woman.

iii) The purchase of suit schedule property by the plaintiff has become an eye-sore to the defendants and some of the defendants are real estate agents who have caste their evil eye on suit schedule property. The plaintiff approached the concerned police for protection, but unfortunately no help was given by the police, citing the reason that it is a civil dispute, which in fact the attempt to tress pass into the suit schedule property by defendant, is also an offence, not withstanding the fact that it is a civil dispute. To protect her property from illegal attempts by the defendants, the plaintiff has no other way except to file the suit for perpetual injunction before this Court.

18. On the other hand, Defendant No.7 remained exparte.

19.Defendant Nos.1 to 6 filed common written statement, denying the material allegations of the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation who did not approach the court with clean hands and she is not entitled for equitable relief of injunction. Defendant No.7 is no way concerned to defendants No.1 to 6, plaintiff for reasons better known

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arrayed as defendant No.7. Admittedly southern boundary for suit schedule property covered under registered sale deed P.No.323/2008 dt.12-11-08, is land of father of defendants No 1 to 6. Similarly in certificate dt.27-08-2004 issued by Mandal Revenue Officer, Khammam (U) (M), appended to the said sale deed southern boundary is mentioned as land of father of defendants No.1 to 6. As per the recitals of said sale deed, one Seelam Venkateswariu vendor of plaintiff, own Ac.1.12 ½ gts, în Sy.No.208/A, 208/1 & 208/0, out of which Ac. 1.00 was alienated in favour of plaintiff through said sale deed, which is allegedly described as suit schedule property. Northern boundary in Certificate issued by MRO, is mentioned as NSP main canal acquired area for an extent of Ac.1.10 gts,. While the extent is enlarged to Ac.1.12 gts, in occupancy certificate issued by Revenue Divisional Officer, dt.25-09-08. Seelam Venkateswarlu vendor of plaintiff, alienated a triangular piece of appurtenant land over an extent of Ac.0.04 gts, out of Sy.No.208/A, 208/1 & 208/0 to north of land of defendants No.1 to 6 in Sy No.206 and 207 through an agreement of sale dt.02-04-07 for a consideration of Rs.2,00,000/- in favour of Podila

Subhadra/mother of defendants No.1 to 6. Further, Seelam

Venkateswarlu vendor has delivered possession of said Ac.0.04 gts, of land under endorsement dt.20.07.2007 on the reverse of said agreement

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of sale. Including said Ac.0.04 gts, father of defendants No.1 and 6 and their mother own compact block of Ac.1.08 gts, in S.No.206, 207 &208.

20. Defendant No.1 and 6 and their mother have been in absolute and uninterrupted possession of Ac.1.08 ¾ gts and the same was leased to one Cheepu Veeresh, who is running marble and granite business in the name and style as "Sri Venkateswara Marbles for past more than one year. Around the boundary, defendants Nos.1 to 6 has erected stone planks before it was leased, which signify their physical possession over

Ac.108 gts. Photographs dt.02-07-2011 closely depict the line of stone planks (12 Nos) on western boundary of land of defendants No 1 to 6.The description of suit schedule property alleging agricultural land of

Kummarikuntla Vallikumari, later NSP main canal on northern side, is erroneous and motivatedly mentioned. Defendants No.1 to 6 reliably came to know that, said Kummarikuntia Vallikumari none other than daughter in law of plaintiff. Plaintiff under the guise of such wrongly described northern boundary trying to encroach part of Ac.1.08 3/4 gts of defendants No.1 to 6, without any right or concern. Plaintiff failed to submit any rough sketch to establish her possession as per alleged northern boundary of Kummarikuntla Vallikumari and the land mark of

NSP acquired land. More-so, plaintiff instead of standing on her own legs

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alleged that, defendants No.1 to 6 admitted that, suit schedule property is situated on northern side of their land in her counter filed in interlocutory application, which is misconceived. It is pertinent to mention that, plaintiff failed to disclose extent of alleged land of Kummarikuntla Vallikumari and it's survey numbers on north and western side of suit schedule property, which is a material suppression.

21. It appears that, plaintiff in connivance with Seelam

Venkateswarlu has created agreement of sale allegedly dt.13-10-2006 and recitals in registered sale document No.P/323/2008 did 12-11-2008 allegedly referring said agreement of sale dt.13-10-06 are premeditated as a make believe affair that, sale transaction in favour of plaintiff is prior to sale transaction in favour of Smt.Podila Subhadra, mother of defendants No.1 to 6. It is incorrect to allege that, from October 2010 defendants No.1 to 6 are making attempts to interfere with possession and enjoyment of plaintiff and that, she started erecting barbed wire fencing, is baseless. It is also incorrect that, during 2" and 3 weeks of

June 2011 made an attempt to interfere with possession of plaintiff, to pull down the pillars of barbed wire fencing Photographs submitted by defendants No.1 to 6 do not show any barbed wire fencing on any comer near by land of defendants No.1 to 6. Mean-while it is transpired that,

Page No. 31 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Kummarikuntla Vallikumari daughter in law of plaintiff collusively filed OS

No.259/2011 on the file of this Court, against Seelam Venkateswarlu, for specific performance of contract alleging oral agreement of sale, as counter blast to above contention of defendants No.1 to 6. Finally, defendants 1 to 6 prayed to dismiss the suit.

22. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the plaintiff is in peaceful possession and enjoyment over the plaint schedule property, as on the date of filing of this suit? 2.Whether the plaintiff is entitled for consequential permanent injunction? 3.To what relief?

23. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A3 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked on behalf of the defendants.

24. The averments of the plaint in O.S.No.51/2016, in brief are that:

i) That plaintiff entered into an oral agreement of contract with the defendant to purchase the suit schedule property measuring to an extent of Ac.0-12 ½ 2gts. from and out of Sy.No.208/A situated at

Khanapuram Haveli Revenue village, Khammam Urban for a total

Page No. 32 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration of Rs.2,00,000/- on 24.09.2004. The defendant received the said sum towards entire sale consideration for the suit schedule property and out of good faith, the oral agreement was not reduced into writing and the said transaction took place on 24.09.2004 in the presence of mediators namely Kesa Srikanth, Mellacheruvu Laxmikantha Rao and

B.Mahinder Singh. The suit schedule property and another extent of

Ac.1.00 gts was purchased by the defendant through registered sale deed bearing document No.7635/2004 on 23.09.2004 (single compact block) and at the time of said registration, the defendant informed the husband of the plaintiff that to clear the debt incurred by him, white purchasing this suit land and another extent of Ac.1.00 gts through the said registered sale deed No.7635/2004, be needed some aspect, as such, he offered to sell the suit schedule property for Rs.2,00,000/ in the presence of above said elders.

ii) Subsequently to the oral agreement of sale dt.24-09-2004, the defendant executed an agreement of sale dt.13-10-2006 selling the remaining extent of Ac.1-00 gts in favour of Smt.Kummarakuntla

Padmavathi, the mother-in-law of plaintiff and later, he executed a registered sale deed bearing document P-323/2008, dt.12-11-2008 for the said extent of Ac.1.00 gts. The defendant is left with no land which had

Page No. 33 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

purchased through registered sale deed bearing document

No.7635/2004, dt.23-09-2004 from his vendor. That having sold the suit schedule property in favour of the plaintiff in this suit, through an oral agreement of sale and having sold the remaining extent of Ac.1-00 gts of land in favour of the mother-in-law of the plaintiff, the defendant delivered two original registered sale deeds pertaining to the suit schedule property and another extent of Ac.1-00 (which is a single com pact block) to the mother-in-law of the plaintiff. Therefore, it is established that the defendant entered into an oral agreement of sale with the plaintiff offering to sell the suit schedule property for a total consideration of Rs.2,00,000/ and also delivered possession of the suit land on the date of oral agreement of sale itself. That on the request made by the plaintiff, her mother-in-law (K.Padmavathi) handed over the two original sale deeds to the plaintiff.

iii) The defendant while executing the registered sale deed in favour of the mother-in-law of the plaintiff, admitted the fact that the suit schedule property in this suit was sold in favour of the plaintiff, which is abutting to the Ac.1-00 of land sold by the defendant in favour of mother- in-law of the plaintiff..in the registered sale deed No.P-323/2008 by mentioning the suit schedule property in this suit as the land sold in

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favour of the plaintiff in this suit. The suit schedule property in this suit is situated on the northern and part of western side of Ac.1.00 gts of land covered by registered sale deed No.P323/2008 executed in favour of

K.Padmavathi, the mother-in-law of plaintiff by the defendant. The plaintiff demanded the defendant to execute the registered sale deed in respect of the suit schedule property , but the defendant had postponed the same on one pretext or the other and there is no hope of defendant executing the registered sale deed in near future. Hence the suit for specific performance of contract basing on the oral agreement of sale dated 24.09.2004.

25. i) Defendant filed written statement, denying the material allegations made in the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation and she did not approach the court with clean hands and she is not entitled for specific performance of agreement, as alleged.

The suit is filed for specific performance of contract allegedly dated 24.09.2004 orally entered by plaintiff and defendant, to sell Ac.0.12 ½ gts, in Sy.No.208/A in the presence of Kesa Srikanth, Mellacheruvu

Lakshmikantha Rao and B.Mahinder is incorrect and denied. It is also incorrect that, defendant received Rs.2 lakhs from plaintiff towards sale

Page No. 35 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration and that delivered possession of suit land in favour of plaintiff. Except vague and self serving allegations, plaintiff failed to disclose cause of action to file above suit. Further plaintiff alleging to have demanded defendant to execute registered sale deed does not arise.

One Mylavarapu Kondal Rao, is the person behind above litigation. Said

Kondal Rao was closely associated with defendant in his business and gained active confidence. Said Konidal Rao purchased land in Sy.No.208 of Khanapuram Haveli, from this defendant through an agreement of sale dt.13-02-2008 for a consideration of Rs1,12,50,000. He obtained a registered sale deed dt.12-11-2008 in favour of his mother in law one

Kummarikuntla Padmavathi and for his convenience an agreement of sale dt.13-10-2006, for Ac.1.00 gts of land in Sy.No.208.

ii) In said documents, said Kondal Rao got mentioned northern boundary as land of petitioner up to NSP main canal. Said boundary was got mentioned by Mylavarapu Kondal Rao, stating that, he can make use of land margin available between NSP canal on the basis of said description. As such, the petition schedule property is fictitious and physically no land as such exists. Said Kamarikuntla Padmavathi none other than mother in law of plaintiff. In fact extent of land of Ac.1.12 ½ gts, in schedule of property as per registered sale deed No.7635/2004

Page No. 36 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

dt.23-09-2004 not physically available within described boundaries.

Defendant delivered his original registered sale deeds (2 Nos) to

Kummarikuntla Padmavathi at the time of execution of registered document dt.12-11-2008, as she purchased major part of land of defendant. It is imaginary to allege that, defendant entered into oral agreement of sale with plaintiff and delivered possession of suit schedule land for consideration of Rs.2 lakhs. Capacity of plaintiff to pay Rs.2 lakhs is also denied.

iii) It is not out of place to mention that, plaintiff did not take any pains to cause legal notice demanding defendant to execute registered sale deed although for (7) years which is beyond any stretch of imagination. Self serving allegations in the plaint manifestly explains fraudulent claim of plaintiff. Under the guise of incorrect description of boundary mentioned in registered sale deed executed in favour of

Kummarikuntla Padmavathi, plaintiff in connivance with said Mylavarapu

Kondal Rao filed above suit malafidely to harass this defendant and to have wrongful gain and finally prayed to dismiss the suit with exemplary costs.

26. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office or trial:

Page No. 37 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

1.Whether the oral agreement of sale between the parties is true, valid and binding on the defendant? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree?

27. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A4 are marked on behalf of plaintiff. On behalf of the defendants, D.W.1 was examined and Exs.B1 and B2 were marked.

28. After conclusion of trial in all the four suits, since the subject matter of the property involved is one and the same and as per the orders in Transfer O.P.No.747/2015 dated 03.03.2016, heard the arguments on both sides in all the suits to deliver common judgment, in order to avoid conflicting opinions and judgments. In addition to the oral arguments, learned counsel for the defendant No.1 in O.S.No.26/2012 also submitted written arguments, in support of his contentions.

ISSUE No.1 TO 4 AND ADDITIONAL ISSUE IN O.S.No.26 of 2016:

29.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

30. At the outset, it is pertinent to note here that deceased plaintiff

No.1 is none other than the son-in-law of Kummarikuntla Padmavathi,

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who is the defendant No.2 herein and Valli Kumari is the daughter-in-law of defendant No.2, who filed O.S.No.51/2016. For the reasons best known, defendant No.2 has remained exparte and did not choose to contest the matter.

31.In support of the aforesaid contentions, the plaintiff himself got examined as PW.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the plaint in toto. P.W.1 in his further examination in chief, marked Exs.A1 to A4. Subsequently, he died and hence his evidence and the marking of documents cannot be looked into.

32. Subsequently, plaintiff No.4 got examined himself as P.W.2, who requested to treat the evidence affidavit for examination in chief filed by P.W.1, wherein he reiterated the contents of the plaint in toto. PW.2 in his further examination in chief marked Exs.A1 to A5 documents, among them Ex.A1 is the agreement, Ex.A2 is the payment endorsement, Ex.A3 is the office copy of legal notice dated 10.1.2011 got issued by plaintiffs,

Ex.A4 is reply notice dated 28.1.2011 and Ex.A5 is reply notice dated 17.2.2011 got issued by plaintiffs to defendant No.1. Ex.A5 is the copy of rejoinder notice dated 17.02.2011 consisting of endorsement of counsel for the defendant. Ex.A6 is the photograph along with C.D. depicting the

Page No. 39 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

name board of Sri Venkateswara Marbles, Bye-pass Road, Khammam and Ex.A7 is the copy of registration details issued by Commercial Tax

Department were marked through D.W.3. During the course of cross examination of P.W.2, he had categorically admitted that there are cordial relations between his family and the family members of defendant No.1 and that his grandmother-defendant No.2 purchased the property from defendant No.1. He has further admitted that as and when the properties are purchased by his family and family of defendant No.2, they used to inform each other about the particulars of the properties to be purchased.

The land purchased by his father and the land purchased by his maternal grandmother are one and the same. Father of P.W.2 sustained monetary loss and his grandmother acted detrimental to the interest of his father.

He has further stated that his mother along with her brothers and maternal grandmother and maternal aunts have purchased Kinnerasani

Theatre under Ex.B1 sale deed, which speaks volumes about their knowledge for purchase of any property. Though he was cross examined at length, nothing adverse is elicited to disbelieve the testimony of P.W.2.

33. To rebut the evidence of P.Ws.1 and 2, D.Ws.1 to 4 are examined on behalf of defendants. Originally P.Y.L.Narasimha Rao, who is the son of defendant No.3, who filed his evidence affidavit for

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examination in chief, wherein he reiterated the contents of his written statement in toto. But instead, Singisala Venkateswar Rao appeared in the court for cross-examination as per the orders in I.A.No.1989/2018

dated 03.12.2018, wherein it was elicited that Seelam Venkateswarlu

purchased land in Sy.No.208 to an extent of Ac.1.02 ½ gts of land under registered document, but the actual land made available is only Ac.1.10 gts. He had admitted that Kondal Rao filed the present suit stating that he purchased Ac.1.12 ½ gts from Seelam Venkateswarlu under sale agreement. Through this witness, Exs.B2 to B6 are marked. The sale transaction under Ex.A8 sale deed was executed in favour of defendant

No.2 for an extent of Ac.1.00 gts of land is the same transaction, where

D.W.4 entered into sale agreement with plaintiff No.1 under Ex.A1 and the said extent alleged to had been sold in favour of defendant No.2, which is said to be on northern side of Ac.0.04 gts of land sold to defendant No.3 under Ex.B7 which is no way concerned to the land covered by Ex.A1 in favour of plaintiff. D.W.4 further stated that to avoid stamp duty charges for a lesser price, agreement of sale under Ex.B9

dated 13.10.2006 was executed. In Ex.B4, the northern boundary

mentioned as the land of Valli Kumari for obtaining permission as there was N.S.P. left branch canal to the boundary of the land. The extent of

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land was mentioned as Ac.1-12 gts based on the document of vendor and admitted that he sold Ac.0.04 gts to defendant No.3 under Ex.B7.

Through him, Exs.B2 to B6 are marked, among them, Ex.B2 is the certified copy of plaint with summons in O.S.No.200/2011 on the file of

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.50/2016),

Ex.B3 is the certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.51/2016),

Ex.B4 is the certified copy of plaint in O.S.No.223/2012 on the file of the

Senior Civil Judge’s Court, Khammam (renumbered as O.S.No.49/2016),

Ex.B5 is the written statement filed by Seelam Venkateswarlu in

O.S.No.259/2011 and Ex.B6 is the certified copy of registered sale deed

bearing document No.7635/2004 dated 23.09.2004 executed in favour of

Seelam Venkateswarlu. It is pertinent to note here that Ex.B1 attested copy of registered sale deed bearing document No.4686/2012 dated 12.04.2012 executed by P.Asha Kumari and others.

34. Though the evidence affidavit of D.W.2 was filed, but she did not turn up for her further chief examination and cross examination stating that she fell ill. Accordingly, the evidence affidavit of D.W.2 was eschewed.

Page No. 42 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

35.D.W.3, who happened to be the business man dealing with marble and granite slabs business under the name and style of Sri

Venkateswara Marbles & Granites filed his evidence affidavit for examination in chief, wherein he deposed that D.W.2 executed lease agreement dated 20.08.2010 in his favour for five years i.e., till 31.08.2015 and the same lease was extended orally. He further deposed that he paid Rs.20,000/- towards monthly rent and presently he is paying

Rs.25,000/- per month. He has further deposed that in the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land and that he and his workers went in aid of sons of D.W.2 to resist them. Exs.A6 and A7 are elicited through this witness.

36. Defendant No.1 got examined C.W.1 in O.S.No.49/2016, wherein it was elicited that Kummarikuntla Srinivasa Rao-D.W.2 is the son of defendant No.1 and husband of defendant No.2, who used to call him as Babai and their houses are located very nearer and got good relations with his family members. It is very pertinent to note here that

C.W.1 categorically deposed that he had Ac.0.04 gts of land which is situated on southern and eastern side of his land. He further admitted that, he sold his land to the plaintiff, which is in triangle shape. On confrontation of Ex.A1, agreement of sale, admitted his signatures and

Page No. 43 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

also the contents of the agreement and so also the endorsements dated 30.06.2007 and 20.07.2007 made on the rear side of the agreement. He has further admitted that while purchasing the land, he got it measured and then it was one acre 12 and half guntas, later a canal was found in which he lost his two guntas of land and hence he own 10 and half guntas of land. He lost his two guntas of land after his sale transaction with Podila Subhadra and that government has not given any compensation for two guntas of land. He admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu Kondal Rao, plaintiff in O.S.No.26/2012 for sale consideration of Rs.1,12,00,000/- and odd and that he executed sale deed in favour of K.Padmavathi, plaintiff in

O.S.No.50/2016 on 12.11.2008. Among three members mentioned

above, initially he sold the land to P.Subhadra and executed an agreement of sale dated 13.01.2006 in favour of K.Padmavathi for getting concession in stamp duty, the registration was kept pending. He did not enter into any transaction with Valli Kumari, plaintiff in O.S.No.51/2016, who filed suit against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts.

37. Further, C.W.1 admitted that he had good terms and that he executed agreement of sale dated 13.10.2006 under Ex.B4 in favour of

Page No. 44 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Padmavathi for getting concession in stamp duty and the registration was kept pending. He categorically admitted that he did not enter into any sale transaction with Valli Kumari (defendant No.3) and clarified the location of suit schedule property sold to Podila Subhadra on southern side of land of Ac.1.00 gts sold to Padmavathi. Having paid huge amount of

Rs.97,12,500/- by 18.12.2008, either in plaint or in the evidence of P.W.1, the same do not disclose the reason for time taken for three years period for Ex.A1 agreement of sale was about to be completed. Ex.B8 sale deed was executed in favour of defendant No.2 on 12.11.2008 i.e., a day after

Rs.7,00,000/- part sale consideration paid on 11.11.2008, one of Ex.A2 part payment endorsements on reverse side of Ex.A1 agreement of sale.

More particularly execution of Ex.A1 sale deed correspond with Ex.A2 endorsement of part payment of Rs.10,00,000/- made on 18.12.2008, establish and conclude sale transaction under Ex.A1 agreement and part payment made under Ex.A3 by execution of Ex.B8-sale deed for Ac.1.00 gts in favour of defendant No.3. Thus, defendant No.2 left suit claim in this suit in O.S.No.26/2012 uncontested, while she is seriously contesting the suit for specific performance of suit schedule to an extent of Ac.0.04 gts and in O.S.No.50/2016 for perpetual injunction for same extent of

Ac.0.04 gts of land, manifests that, in collusion with the plaintiffs and

Page No. 45 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

defendant No.2 are hand in glove with each other. Certified copy of partnership deed dated 15.02.2013 (Ex.B10) pertaining to M/s Sai

Krishna Constructions reveal that the family members of defendant No.2, plaintiffs 2, 3 and 6 are the partners in the said firm and partnership deed was attested by deceased plaintiff No.1. Ex.B10 reveal collusion among the plaintiffs and family members of defendant No.2 to harass the plaintiffs to have wrongful gain. Having regard to the facts and circumstances of the case and keeping in view the voluminous oral and documentary evidence on both sides, the agreement of sale under Ex.A1 between the parties cannot be relied and acted upon the parties.

38. Learned counsel for defendants 3 to 9 sought to rely on the following decisions in support of their respective contentions.

1.Judgment of Hon’ble Supreme Court in Civil Appeal No.147-148 of 2021 decided on 05.10.2020 between Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha.

2.Judgment of Hon’ble Supreme Court in Civil Appeal No.4703- 2022 (Arising out of SLP (C) No.19463 of 2018) decided on 12.07.2022 between U.N.Krishna Murthy (Since Deceased) Thr. Lrs. Vs. A.M.Krishna Murthy.

By relying on the above judgments, the learned counsel for the defendants 3 to 9 contended that since the plaintiffs have not shown the essential ingredients of ready and willingness, which relates to the conduct of the plaintiffs and they have not shown any bonafides by show

Page No. 46 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of any cogent and convincing evidence to consider the relief of specific performance of contract.

39. The plea of limitation referred to was that the averment of readiness and willingness required by Section 16 (c) of the Act was part of the cause of action for the suit and therefore the suit itself was liable to be dismissed as barred by limitation. It was this plea raised by the defendant that was left open for consideration at the trial of the suit.

Subsequently, the original plaintiff Kondal Rao died and his legal representatives were impleaded as supplemental plaintiffs in the suit. The averment of readiness and willingness on the part of the plaintiffs was part of the cause of action for the suit. The contention raised by the defendants is that a recital regarding readiness and willingness of the plaintiffs to perform the essential terms of the contract is part of the cause of action for the suit in view of the provisions contained in Section 16 (c) of the Act and the prescriptions in forms 47 and 48 of Appendix A to the

C.P.C. Section 16 (c) provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms, the performance of which has been prevented or waived by

Page No. 47 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

the defendant. Forms 47 and 48 of Appendix A to the C.P.C. work out this requirement with appropriate recitals in model plaints. The defendants’ contention is that this recital goes to the root of the matter, and unless it finds a place in the plaint within the period of limitation prescribed by law, the entire suit has to fail. Admittedly, the part payments made by 13.02.2008 and the suit was presented on 16.12.2011. Added to it, the plaintiffs failed to file any documentary proof in support of their claim that they deposited the balance amount in any bank and thereby ready and willing to perform their part of contract according to the recitals of the agreement of sale. Having regard to the oral and documentary evidence adduced by both sides, there is a dispute between the parties regarding the extent of land alleged to have been sold and therefore this court is of the considered view that the relief of specific performance of contract cannot be concluded, but at the most the plaintiffs are entitled to the alternative relief for refund of the earnest money under the additional issue. Thus, the plaintiffs are not entitled to the relief of specific performance of contract and for declaration of the registered sale deed bearing document No.P323/2008 dated 12.11.2008 as null and void and not binding on the plaintiffs, except the alternative relief under additional issue directing the defendants No.1 to refund the earnest money of

Page No. 48 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Rs.97,12,500/- together with interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of suit, till the date of realization on Rs.97,12,500/-. Issues No.1 to 4 and additional issue are answered accordingly.

50. Heard both sides. Plaintiffs and defendant No.2 and 3 also filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.49 of 2016:

51.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

52. At the outset, it is pertinent to note here that except the plaintiffs in this suit, all other parties in the three remaining suits are related and the subject matter in all belongs to one and the same family.

Kummarikuntla Padmavathi-defendant No.2 herein filed O.S.No.590/2016 for perpetual injunction against plaintiffs 2 to 7 herein and one Bandi

Sekhar in respect of land to an extent of Ac.1.00 gts in Sy.No.208/I, O, alleged to have been purchased from Seelam Venkateswarlu-defendant

No.1 herein. Subsequently, Kummarikuntla Valli Kumari-defendant No.3 herein filed O.S.No.51/2016 for specific performance against Seelam

Venkateswarlu in respect of Ac.0.12 ½ gts in Sy.No.208/A alleged to have

Page No. 49 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

been purchased from Seelam Venkateswarlu-defendant No.1 herein, basing on oral agreement of sale dated 24.09.2004. Plaintiff No.1 filed the above suit for specific performance of and for perpetual injunction, against Seelam Venkateswarlu-defendant No.1, in respect of Ac.0.04 gts in triangular piece of land out of Sy.No.208 of Khanapuram Haveli, through Ex.A1 agreement of sale dated 02.04.2007 for consideration of

Rs.2,00,000/-. Plaintiff No.1 paid Rs.50,000/- on 02.04.2007, Rs.50,000/- on 30.06.2007 and Rs.1,00,000/- on 20.07.2007 to defendant No.1 towards sale consideration and possession was also delivered on 20.07.2007 and to the said effect, defendant No.1 also endorsed on the reverse of Ex.A1 agreement of sale dated 02.04.2007.

53. In order to prove the case, P.W.1 was examined on behalf of plaintiff, who fled his evidence affidavit for examination in chief, wherein he reiterated the contents of the plaint in toto. During his further examination in chief, marked Exs.A1 to A8 on his behalf. Apart from

P.W.1, plaintiffs also examined P.Ws.2 and 3, who filed their evidence affidavits for examination in chief, wherein they supported the evidence of

P.W.1 in all respects.

54. On behalf of defendants, D.W.1 filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written

Page No. 50 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

statement chief in toto. During his further examination in chief, got marked Exs.B1 to B3 to B7. Apart from the evidence of D.W.1, the defendants also examined D.W.2 on their behalf. During the cross examination of D.W.1, it was elicited that she, D.W.2 and his family members and her both sons live together and her daughter Aruna is wife of Mylavarapu Kondal Rao. She has further admitted that her son-in-law

Mylavarapu Kondal Rao had passed away about four years back i.e., from 05.03.2021. During the life time of late Kondala Rao, her daughter and her family members are residents of Gandhi Chowk, which is nearer to their residence and there are cordial relations among their family and the family members of her son-in-law M.Kondal Rao and the same relationship is continued. It is pertinent to note here that C.W.1 categorically admitted during his cross examination that he sold away the suit schedule property in favour of deceased Plaintiff and the same is evident from Ex.A1 and the part payments made on the reverse of the agreement of sale i.e., Ex.B3.

55. Apart from the above evidence, defendant No.1 is examined as C.W.1, who stated that he is the defendant No.1 in the above suit and did not file any written statement. He has further stated that he did not receive any summons and notices from the court to give evidence. He

Page No. 51 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

has further stated that he knows one Kummarikuntla Srinivasa Rao for more than 10 years. Their houses are located very nearer and that said

Srinivasa Rao used to call him as Babai. He has further stated that he own total extent of Ac.1.12 ½ gts in Sy.No.208. While purchasing the land, he got it measured and then it was Ac.1.12 ½ gts, later a canal was found in which he lost his two guntas of land after his sale transaction with Podila Subhadra. He has further deposed that government has not given any compensation for two guntas of land. He has admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu

Kondal Rao for sale consideration of Rs.1,12,00,000/- and odd. He has further admitted that he executed sale deed in favour of K.Padmavathi on 12.11.2008 for an extent of Ac.1.00 gts and the same was registered on 18.12.2008. Among three members mentioned above, initially he sold to

P.Subhadra and he executed an agreement of sale dated 13.01.2006 in favour of Padmavathi for getting concession in stamp duty and the registration was kept pending. He has further stated that he did not enter into any sale transaction with Valli Kumari. He has further admitted that

Valli Kumari has filed O.S.No.51/2016 against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts. He had denied other suggestions put to him. When this witness was

Page No. 52 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

confronted with Ex.A1 agreement of sale, he admitted his signature and also endorsements and contents on the reverse of the agreement of sale.

By the evidence of this witness, it is crystal clear that he alienated an extent of Ac.0.04 gts in favour of deceased plaintiff No.1.

56. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A9 and the evidence of defendant No.1 as C.W.1, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for specific performance of contract and consequential relief of perpetual injunction.

Issues No.1 to 4 are answered accordingly.

57. Heard both sides. Both sides filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.50 of 2016:

58.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

59. In order prove the suit claim, plaintiff has examined herself as

P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A3 on her behalf, among them Ex.A1 is the certified copy of registered sale deed bearing document No.4310/2012 dated 12.11.2008, Ex.A2 is the proceedings issued by the District Registrar, Khammam vide

Page No. 53 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.MV/47/A/88/20009 and Ex.A3 is the original agreement of sale dated 13.10.2006.

60. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she expressed ignorance about the measurements and her son verified the title documents. She stated that even by the year, 2006, she was the resident of Khammam and she is not having any relatives at Suryapet. She expressed her ignorance about purchase of stamp paper and drafting of sale agreement was purchased at Suryapet.

She denied the suggestions that Ex.A3 agreement of sale is no way relating to the sale transaction and land of Subhadra was in Sy.No.208.

She has further stated that she did not verify as to whether any document was in existence showing the measurements and boundaries of the schedule property in which she is in possession of the land and she can identify the suit schedule property. P.W.1 stated that land of Subhadra was leased out to Marble shop up to her southern boundary and categorically admitted that Subhadra leased out Ac.1.08 ¾ gts of land to

Marble shop up to the stone poles. She stated that her daughter in law purchased Ac.0.12 ½ gts of land and since the date of her purchase and even prior to that the land is vacant. She admitted that she is having

Page No. 54 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

cordial relationship with her son-in-law and there are no differences and disputes in between her family and the family members of her daughter and that her son-in-law filed a suit before the court against Seelam

Venkateswarlu stating that he also purchased the same property. She is not contesting the said suit. She expressed that she does not know whether her son in law purchased the property by paying sale consideration and that she purchased the property for Rs.12,60,000/-.

She expressed ignorance as to whether the value of the land is one crore or above. She denied the suggestion that she and her daughter-in-law only to grab the property of Subhadra got created a sale agreement with ante date, so also other suggestions.

61. P.W.2-Kummarikuntla Sreenivasa Rao stated that he is the son behind the litigation related to said four suits. He has further stated that he purchased Ac.0.12 ½ gts of land for his wife Valli Kumari in the year 2004 and the property was got measured prior to registration, but the northern boundary of the property was purchased by his wife, NSP canal was not confirmed with NSP authorities and not confirmed the boundaries of survey numbers of Bikshamaiah by appointing government surveyor. He admitted that as per the certificate given by M.R.O. in

Dis.No.B/9957/2004 the extent mentioned as Ac.1.10 gts, which is part of

Page No. 55 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.A1 sale deed. He has further admitted that he did not file any document with regard to taking of measurements of land with confirmation of his vendor. Except the registered sale deed-Ex.A1 executed by the vendor in favour of his mother, he had no documentary proof to show that his mother is in possession of the property since the date of purchase and that he did not file any document to show that his vendor handed over possession of Ac.0.12 ½ gts of land of his wife.

62. P.W.3-Mahender Singh Bharadwaj, who is one of the attestors to Ex.A1 sale deed supported the evidence of P.Ws.1 and 2. During the course of cross examination, he denied the suggestions such as he was not present at the time of transaction dated 13.10.2006 and no transaction took place between Seelam Venkateswarlu and and the plaintiff.

63. In support of the contentions of the defendants, the defendant

No.1 himself got examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the written statement in toto. D.W.1 in his further examination in chief marked Exs.B1 to

B5 documents, among them, Ex.B1 is the sale agreement dated 02.04.2007,

Ex.B2 is the endorsement on reverse of the agreement of sale, Ex.B3 are two photographs with C.D., Ex.B4 is the receipt issued by the photographer and

Page No. 56 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B5 are the three photographs.

64. During the course of cross examination, D.W.1 admitted that he did not file any document to show that he is having land to an extent of

Ac.1.04 ¾ gts in Sy.No.206 and 207. He has further admitted that some of the land in Sy.No.206 and 207 was acquired for laying bypass road, after that the remaining land belongs to him. Total extent of land in

Sy.No.206 and 207 is Ac.0.35 gts and Ac.0.38 gts and that his land is towards northern side of bypass road, which is a triangular piece of bit and that the eastern side boundary is zero. He denied the suggestion that towards northern side of his property, the property of Padmavathi is situated, which he denied. He further stated that there is land of Seelam

Venkateswarlu towards his northern side and he does not know who purchased the same. The plaintiff filed suit stating that he tried to encroach into the land of Padmavathi.

65. The defendants also examined D.W.2, who filed his affidavit for examination in chief, wherein he stated that himself and his brother-in- law Cheepu Veeraiah have been dealing with marble and granite slabs business in the name and style of Sri Venkateswara Marbles and

Granites since 2010 in Ac.1.08 ¾ gts of land belong to Podila Subhadra, on lease and that stone planks were erected on boundaries for the said

Page No. 57 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

land. An agreement of lease dated 20.08.2010 was executed by

Smt.Subhadra and her sons in their favour, for a period of five years till 31.08.2015. Later, his lease was extended orally and that initially, they paid Rs.20,000/- towards monthly rent and at present they are paying

Rs.25,000/- pr month. During the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land, then himself and their workers went in aid of sons of Smt.P.Subhadra to resist them. During the course of cross examination, Ex.A4-photograph and

Ex.A5-copy of registration details issued by the Commercial tax department. D.W.2 admitted that he mentioned the location of shop in

Sy.No.206 and 207 in Ex.A5.

66. As seen from the evidence of D.W.2, he alleged to have been carrying on his business in Sy.Nos.206 and 207 even as per Ex.A5 also, whereas the claim of the plaintiff in respect of land measuring to an extent of Ac.0.20 gts in Sy.No.208/I and Ac.0.20 gts in Sy.No.208/O, total measuring Ac.1.00 gts in single compact block. Thus, the evidence of

D.Ws.1 and 2 is contradictory to each other and they are uncertain about their land. Therefore the inconsistency in the evidence of D.Ws.1 and 2 and the survey numbers as spoken to by D.W.1 and D.W.2 differs from that of P.Ws.1 to 3. Admittedly, Exs.B1 to B5 reveal running of Sri

Page No. 58 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Venkateswara Marbles and Granites, Khammam. These Exs.B1 to B5 are the certified copies and the originals of which are filed in

O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam.

These documents do not reflect conducting of any marbles and granites business in the land being claimed by the defendants, except a nominal board depicting as Sri Venkateswara Marbles and a Mini Lorry kept underneath the board, whereas Ex.A1 is the registered sale deed bearing document No.4310 dated 12.11.2008, Ex.A2 is the proceedings in

No.M.V/47-A/88/2009 dated 30.11.2010 issued by the District Registrar of

Assurances, Khammam, wherein after due verification of the land, the deficit fee of Rs.4,85,350/- has been directed to be collected from the plaintiff under Section 48 of Indian Stamp Act, 1899, within 15 days from 30.11.2020. Ex.A3 is the agreement of sale in respect of the suit schedule property. Therefore, the oral and documentary evidence let in by the defendants is contradicting and varying from that of the suit schedule property.

67. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for perpetual injunction as the plaintiffs proved title and it is

Page No. 59 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

settled law possession follows title. Issues No.1 to 4 are answered accordingly.

68. Heard both sides. Both sides also filed written arguments.

ISSUE No.1 TO 3 IN O.S.No.51 of 2016:

69.Issue Nos.1 to 3 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

70. In order to prove the suit claim, plaintiff has examined herself as P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A4 on her behalf, among them Ex.A1 is the certified copy of registered agreement of sale-cum-G.P.A. bearing document No.5657/2001 dated 09.10.2011, Ex.A2 is the original registered sale deed bearing document

No.7635 dated 23.09.2004 and Ex.A3 is the certified copy of agreement of sale dated 13.10.2006 executed by defendant.

71. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she admitted that she did not issue any notice till filing of the suit demanding the defendant to execute the registered sale deed in respect of the suit schedule property in pursuance of the oral agreement of sale dated 24.09.2004.

Page No. 60 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

72. P.Ws.2 and 3 are alleged to be one of the mediators to the sale transaction between the plaintiff and defendant.

73. As seen from Exs.A1 to A4, the land within the boundaries specified in the agreement of sale and the registered sale deed differs with each other.

74. Coming to the evidence on behalf of the defendant, he himself examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written statmenet. During his further chief examination, he got marked Exs.B1 and B2 on his behalf, among them, Ex.B1 is the certified copy of agreement of sale dated 13.02.2008 between Mylavarpu Kondal Rao and the defendant for a total consideration of Rs.1,12,50,000/-. Ex.B2 is the copy of plaint in

O.S.No.26/2012 on the file of this Hon’ble Court, wherein Mylavarapu

Kondal Rao filed the suit for specific performance of contract and after his demise, his legal representatives are prosecuting the case. But as per

Ex.A3, the ale consideration was Rs.12,60,000/-. As seen from both

Ex.A3 and Ex.B1, there is lot of difference in the sale consideration.

Vallikumari is no other than wife of Kummarakuntla Srinivasa Rao. Mother of Kummarakuntla Srinivasa Rao namely Padmavathi, filed suit in

O.S.No.50/2016 basing on the alleged registered sale deed bearing

Page No. 61 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

document No.4310, dated 12.11.2008 executed in favour of

K.Padmavathi by the defendant herein, whereas the agreement of sale

dated 24.09.2004 alleged to had been executed by defendant herein.

75. It is not out of place to mention here that plaintiffs in

O.S.No.26/2012, O.S.No.49/2016, O.S.No.50/2016 and this suit are

related and residing together, as admitted by them. Even assuming for a while, when the mother-in-law K.Padmavathi had filed the suit in

O.S.No.50/2016 basing on the alleged registered sale deed executed in

her favour by this defendant way back in the year, 2008 itself, this plaintiff being daughter-in-law to K.Padmavathi, who is alleging that this defendant had executed agreement of sale way back in the year 2004 itself i.e., 24.09.2004 i.e., even prior to the transaction between her mother-in-law, K.Padmavathi and this defendant herein was concluded by 12.11.2008 itself and the plaintiff keeping silent for all these days without issuing any legal notice to the defendant till filing of the suit for more than seven years, when herself, K.Padmavathi, K.Srinivasa Rao and other family members are residing together appears to be dubitable. Further, the plaintiff is relying on oral contract 24.09.2004 and the evidence adduced on behalf of the plaintiff basing on the alleged oral contract appears to be vague and baseless claim. It is well established principles

Page No. 62 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of law that the suit for specific performance of contract on oral contract is not maintainable unless and until it is proved because heavy burden lies on the plaintiffs that too without any legal notice for more than 7 years, when the other transactions were alleged to be concluded in the name of her other family members. More-over, the plaintiff has failed to show her readiness and willingness to perform her part of contract in pursuance of the so-called oral contract. The assertion made by the plaintiff that

Exs.A1 to A3 handed over by her mother-in-law and hence they entered into oral contract in respect of the suit schedule property appears to be dubitable and not believable.

76. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5 and the evidence of D.W.1 coupled with

Exs.B1 and B2, it is crystal clear that plaintiff failed to prove the suit claim based on oral agreement and hence she is not entitled for specific performance of contract. Issues No.1 to 4 are answered accordingly.

ISSUE No.5 in O.S.No.26 of 2012:

77. In view of my discussion on issues No.1 to 4 and additional issue, the suit of the plaintiffs is decreed partly to the extent of refund of earnest money and the rest of the suit claim is liable to be dismissed.

Page No. 63 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ISSUE No.5 O.S.No. 49 OF 2016:

78. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is decreed as prayed for.

ISSUE No.5 in O.S.No.50 of 2016:

79. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be decreed as prayed for granting perpetual injunction.

ISSUE No.5 in O.S.No.51 of 2012:

80. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be dismissed, but without costs.

RESULT IN O.S.No.26/2012:

In the result, the suit is decreed partly with costs. The defendant

No.1 is directed to pay an amount of Rs.97,12,500/- to the plaintiff with subsequent interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of decree, till the date of realization on Rs.97,12,500/-. The rest of the suit claim is dismissed, but in the circumstances without costs.

RESULT IN O.S.No.49/2016:

In the result, the suit is decreed with costs. The defendant No.1 is hereby directed to execute registered sale deed within two months from the

Page No. 64 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

date of this judgment and in case defendant No.1 failed to execute the registered sale deed, the plaintiff is at liberty to seek relief through process of court. Consequently, the plaintiff is granted perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.50/2016:

In the result, the suit is decreed with costs granting perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.51/2016:

In the result, the suit is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, this the 18th day of November,

2022.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

-APPENDIX OF EVIDENCE-

Witnesses examined for Plaintiffs in O.S.No.26 of 2012:

P.W.1 : M.Kondal Rao. P.W.2 : M.Sravan Kumar

Page No. 65 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : P.Subhadra (Eschewed) D.W.3 : B.Chinthaiah D.W.4 : S.Venkateswarlu

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 13.02.2008. Ex.A2 : Office copy of legal notice dated 10.01.2011. Ex.A3 : Reply notice dated 28.01.2011. Ex.A4 : Reply notice dated 17.02.2011. Ex.A5 : Office copy of rejoinder notice dated 17.02.2011. Ex.A6 : Photograph with C.D. dated 30.11.2018 showing the name board styled as Sri Venkateswara Marbles. Ex.A7 : Copy of registration details issued by Commercial Taxes Department.

For Defendants:

Ex.B1 : Certified copy of plaint along with summons in O.S.No.200/2011 on the file of Senior Civil Judge’s Court, Khammam. Ex.B2 : Certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s court, Khammam.

Ex.B3 : Certified copy of plaint in O.S.No.223/2011 on the file of the

Senior Civil Judge’s Court, Khammam.

Ex.B4 : Certified copy of written statement filed by Seelam Venkateswarlu. Ex.B5 : Certified copy of the registered sale deed bearing document No.7635/2011 dated 23.09.2004. Ex.B6 : Photograph depicting the shop. Ex.B7 : True copy of agreement of sale dated 02.04.2007 Ex.B8 : Certified copy of registered sale deed bearing document No.4310/2012 (P.323/2008) executed by defendant No.1 Ex.B9 : Certified copy of agreement of sale dated 13.10.2006 executed by defendant No.1.

Page No. 66 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Witnesses examined for Plaintiffs in O.S.No.49 of 2016:

P.W.1 : P.Yadagiri Laxminarasimha Rao. P.W.2 : P.Subhadra P.W.3 : B.Chinthaiah

C.W.1 : Seelam Venkateswarlu

For Defendants:

D.W.1 : K.Padmavathi D.W.2 : K.Srinivasa Rao

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 02.04.2007 executed by defendant No.1 Ex.A2 : Office copy of legal notice dated 20.09.2011. Ex.A3 : Postal acknowledgment Ex.A4 : Served copy of plaint in O.S.No.50/2016 Ex.A5 : Certified copy of order in I.A.No.843/2011 in O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam Ex.A6 : Certified copy of plaint in O.S.No.51/2016. Ex.A7 : Certified copy of registered sale deed bearing document No.7635/2004 dated 30.09.2004. Ex.A8 : Certified copy of sale deed bearing document No.P-323/2008

dated 12.11.2008.

For Defendants:

Ex.B1 : Photograph depicting the shop Ex.B2 : Certified copy of registration details issued by Commercial Taxes Department. Ex.B3 : Certified copy of registered sale deed bearing document dated 12.11.2008. Ex.B4 : Certified copy of agreement of sale dated 13.10.2006 Ex.B5 : Certified copy of proceedings of the D.R.A., Khammam dated 30.11.2010. Ex.B6 : Letter dated 11.01.2019 addressed by the Sales Tax Office, Khammam

Page No. 67 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B7 : VAT certificate dated 19.08.2011.

Witnesses examined for Plaintiffs in O.S.No.50 of 2016:

P.W.1 : K.Padmavathi. P.W.2 : K.Srinivasa Rao P.W.3 : Mahender Singh Bharadwaj

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : B.Chinthaiah

Exhibits Marked for

Plaintiffs:

Ex.A1 :Certified copy of registered sale deed bearing documetn No.4310/2012, dated 12.11.2008. Ex.A2 :Proceedings issued by the District Registrar, Khammam vide MV/47/A/88/2009 Ex.A3 : Original agreement of sale dated 13.10.2006.

For Defendants:

Ex.B1 : Certified copy of sale agreement dated 02.04.2007 Ex.B2 : Endorsement on the reverse of first page of Ex.B1 dated 20.07.2007. Ex.B3 : Two photographs with C.D. Ex.B4 : Receipt issued by Photographer. Ex.B5 : Three positive photographs

Witnesses examined for Plaintiffs in O.S.No.51 of 2016:

P.W.1 : K.Valli Kumari. P.W.2 : Mahendrasingh Bharadwaj P.W.3 : M.Laxmikantha Rao

For Defendants:

D.W.1 : S.Venkateswarlu

Page No. 68 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Exhibits Marked for

Plaintiffs:

Ex.A1 : Original registered agreement of sale-cum-G.P.A. vide document No.5657/2001, dated 09.10.2001. Ex.A2 : Original registered sale deed bearing document No.7635/2004,

dated 23.09.2004.

Ex.A3 : Certified copy of agreement of sale dated 13.10.2006. Ex.A4 : Certified copy of registered sale deed bearing document No.4310/2008, dated 12.11.2008.

For Defendants:

Ex.B1 : Certified copy of unregistered agrement of sale deed dated 13.02.2008. Ex.B2 : Certified copy of neat copy of plaint in O.S.No.26/2012.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

Compared by:

Page No. 1 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

KHAMMAM

Friday, this the 18th day of November, 2022.

Present: Dr.T.Srinivasa Rao,

Principal District Judge,

Khammam, FAC, II Additional District Judge, Khammam.

O.S.No.26 of 2012, O.S.No.49 of 2016, O.S.No.50 of 2016 and

O.S.No. 51 of 2016

O.S.No.26 of 2012:

Between:

1.Mylavarapu Kondal Rao (Died), L.Rs, 2.Mylavarapu Annapurnamma, W/o late Pitchaiah, Aged 80 years, Occu:House hold, R/o Sriram Hills, Khammam City and District. 3.Mylavarapu Aruna, W/o late Kondal Rao, Aged 48 years, Occu:House hold, R/o Sriram Hills, Khammam. 4.Mylavarapu Sravan Kumar, S/o late Kondal Rao, Aged 28 years, Occu:Business, R/o Sriram Hills, Khammam City. 5.Mylavarapu Uday Kumar, S/o late Kondal Rao, Aged 24 years, Occu:Business, R/o Sriram Hills, Khammam City. 6.Kothuri Amulya, D/o late Kondal Rao, Aged 25 years, Occu:House hold, R/o Sriram Hills, Khammam City.

(Plaintiffs No.2 to 6 were added as per orders in I.A.No.919/2017 dated 17.11.2017)

…..Plaintiffs in O.S.No.26/2012.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Podila Subhadra (Died), L.Rs.,

Page No. 2 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 5.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 6.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 7.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 8.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 9.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, (Defendant No.3 is added as per orders in I.A.No.189/2014 dated 03.06.2015) (Defendant Nos.4 to 9 as L.Rs. of defendant No.3 are added as per orders in I.A.No.3/2021, dated 23.11.2021)

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…..Defendants.

O.S.No. 49 of 2016:

Between:

1.Podila Subhadra (Died), L.Rs., 2.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 3.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 4.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 5.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 6.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 7.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture,

Page No. 3 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…...Plaintiffs in O.S.No.49 of 2016.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Kummarikuntla Vallikumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Defendants in O.S.No.49 of 2016.

O.S.No.50 of 2016:

Between:

Kummarikuntla Padmavathi, W/o Kumaraswamy, Aged 65 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Plaintiff in O.S.No.50 of 2016.

And

1.Podila Yadagiri Narasimha Rao, S/o Bikshamaiah, Aged 50 years, Occu:Railway Police Constable, R/o Tekulapalli village, Khammam Urban Mandal, Khammam District. 2.Podila Papa Rao, S/o Bixamaiah, Aged 40 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 3.Podila Muralikrishna, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 4.Podila Srinivasa Rao, S/o Bixamaiah, Aged 32 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 5.Podila Linga Raju, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/ o Nagaram, 2nd Line, Srinagar Colony, Khammam Town. 6.Podila Sasi Kumar, S/o Bixamaiah, Aged 30 years, Occu:Agriculture, R/ o Srinagar Colony, 1st Line, KhammamTown. 7.Bandi Sekhar, S/o late Butchaiah, Aged 30 years, occu:Real Estate Agent, R/o Near Anjaneyaswamy Temple, Tekulapalli, Khammam Urban Mandal, Khammam District. ….Defendants in O.S.No.50/2016.

Page No. 4 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.51 of 2016:

Between:

Kummarakuntla Valli Kumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam Town and District. ….Plaintiff in O.S.No.51/2016.

And

Seelam Venkateswarlu, S/o Narsaiah, Aged 61 years, Occu:Agriculture, R/o H.No.4-4-121, Guttala Bazar, Khammam Town and District. ….Defendant in O.S.No.51/2016.

These suits are coming before me for final hearing on 01.11.2022 in the presence of Sri K.P.Satyanarayana Rao, Advocate for Plaintiffs in

O.S.No.26/2012, Sri Mittapalli Srinivasa Rao, Advocate for Defendant

No.1, Defendant No.2 remained exparte and that of Sri B.Kalyan Rao, Advocate for Defendant No.3 in O.S.No.26/2012; Sri B.Kalyan Rao, Advocate for plaintiffs in O.S.No.49/2016, Defendant No.1 remained exparte and that of Sri V.N.Hanumantha Rao, Advocate for Defendant Nos.2 and 3 in O.S.No.49/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.50/2016, Sri B.Kalyan Rao, Advocate for Defendant Nos.1 to 6 and Defendant No.7 remained exparte in O.S.No.50/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.51/2016 and that ofSri Mittapalli Srinivasa Rao, Advocate forDefendant in

O.S.No.51/2016; upon perusing the material papers on record; upon

hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:

COMMON JUDGMENT

Suit in O.S.No.26/2012 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of the agreement of sale dated 13.02.2018 directing the defendant No.1 to execute registered sale deed in respect of the suit schedule property by

Page No. 5 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

receiving balance sale consideration; to declare the registered sale deed bearing document No.P323/2008 dated 12.11.2008 executed by 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff; to execute registered sale deed in respect of the suit schedule property through process of court, in case of defendant No.1 fails to execute the registered sale deed in favour of the plaintiffs and for awarding costs of the suit.

2. Suit in O.S.No.49/2016 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of agreement of sale dated 2.4.2007 in respect of the suit schedule property directing the defendants to execute valid registered sale deed in favour of the plaintiffs, to grant perpetual injunction, restraining the defendant

Nos.1 to 3, their men and any other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for awarding costs of the suit.

3. Suit in O.S.No.50 of 2016 is filed by the plaintiff against the defendants seeking perpetual injunction, restraining the defendants, their men, agents, servants and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for awarding costs of the suit.

Page No. 6 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4. O.S.No.51/2016 is a suit filed by the plaintiff seeking specific performance of contract against the defendant in pursuance of the oral agreement of contract dated 24.09.2004 directing the defendant to execute valid registered sale deed in respect of the suit schedule property, in case of failure of defendant, to execute the registered sale deed through process of law by the court in respect of the suit schedule property and for awarding costs of the suit.

5. The averments of the plaint in O.S.No.26 of 2012, in brief; are that:

i) Defendant No.1 has offered to sell the suit schedule property i.e., agricultural land measuring to an extent of Ac.1.12 ½ gts in

Sy.Nos.208/A, 208/I and 208/O of Khanapuram Haveli and the plaintiff accepted to purchase the same for a total sale consideration of

Rs.1,12,50,000/- in lumpsum. Accordingly, defendant No.1 had executed an agreement of sale dated 13.02.2008 in favour of the plaintiff for sale of said land and on the same day, the defendant had received an amount of Rs.28,12,500/- towards advance sale consideration and the said agreement of sale was duly attested. Thereafter, the plaintiff has paid

Rs.5,00,000/- on 15.04.2008, Rs.10,00,000/- on 8.5.2008 and

Rs.5,00,000/- on 2.6.2008, Rs.8,00,000/- on 28.7.2008, Rs.5,00,000/- on

Page No. 7 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

27.9.2008, Rs.9,00,000/- on 11.10.2008, Rs.10,00,000/- on 6.11.2008,

Rs.7,00,000/- on 11.11.2008 and Rs.10,00,000/- on 18.12.2008 to the 1st defendant towards balance sale consideration. Thus, in all the plaintiff has paid total amount of Rs.97,12,500/- by 18.12.2008 to the defendant

No.1 under the said agreement of sale and all the payments made by plaintiff were acknowledged by the defendant No.1 on the reverse of the said agreement of sale.

ii) The 1st defendant did not come forward to execute registered sale deed by receiving balance sale consideration, in spite of several demands by plaintiff and therefore the plaintiff got issued legal notice on 10.1.2011 demanding the 1st defendant to execute registered sale deed by receiving balance sale consideration and having acknowledged the same, the 1st defendant got issued reply notice on 28.01.2011 admitting the fact of execution of said agreement of sale and receipt of Rs.97,12,500/-. But surprisingly and malafidely the 1st defendant had taken a plea that the land measuring Ac.1.00 gts covered by the said agreement of sale dated 13.02.2008 was conveyed in favour of Smt.Kummarikuntla Padmavathi, mother-in-law of the plaintiff, alleging that he has done so, at the request of brother-in-law of the plaintiff and further alleged that plaintiff has no capacity to pay remaining sale

Page No. 8 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration, which is absolutely false and baseless. Therefore, the plaintiff got issued reply notice dated 17.02.2011 to the reply notice dated 28.1.2011 got issued by 1st defendant, denying the said allegations.

iii) There is no truth in the plea by 1st defendant that the said registered sale deed was executed in favour of Kummarikuntla

Padmavathi (defendant No.2) at the instance of the plaintiff’s brother-in- law and the same was false and baseless. The further allegation that plaintiff’s wife and plaintiff’s brother-in-law came to the Registrar Office and that at the request of plaintiff the said sale deed was executed in favour of defendant No.2 etc., are false and baseless. None of the persons mentioned in rejoinder notice dated 28.01.2011 in para No.5 attested the sale deed executed by 1st defendant and the entire story was created by the 1st defendant to deprive the plaintiff’s legitimate right to obtain registered sale deed in respect of the suit schedule property under the agreement of sale dated 13.02.2008.

iv) The plaintiff is no way concerned with the said transaction done in favour of 2nd defendant by 1st defendant and as such the question of plaintiff returning the original agreement of sale dated 13.02.2008 executed by 1st defendant in favour of plaintiff does not arise. The plaintiff has got capacity to pay the balance sale consideration and is ever ready

Page No. 9 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

and willing to perform his part of contract and is entitled to enforce the said agreement of sale dated 13.02.2008 against the defendant having already parted with huge amount of Rs.97,12,500/-. As such, the plaintiff is entitled to sue and the defendants are liable to be sued on the account of agreement of sale dated 13.02.2008. As there is no hope of 1st defendant coming forward to execute registered sale deed, the plaintiff is compelled to file this suit for specific performance of contract.

6. i) On the other hand, defendant No.1 in O.S.No.26/2012 filed written statement, denying the plaint averments and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation. Plaintiff did not approach the court with clean hands and he is not entitled for equitable relief of specific performance of agreement basing on the alleged agreement of sale dated 13.02.2008 to sell the suit schedule property and that defendant No.1 received

Rs.97,12,500/- by way of deferred payments, but the said amount is not entirely from plaintiff. The plaintiff made several demands to execute registered sale deed by receiving balance sale consideration is invented and that the legal notice dated 10.01.2011 got issued by plaintiff, with incorrect allegations and defendant No.1 got issued reply dated 28.01.2011 through M.Nageswar Rao, Advocate.

Page No. 10 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) It is further contended that one K.Srinivasa Rao, who is brother-in-law of plaintiff, is neighbour after three houses to defendant

No.1 and he is closely acquainted. Bargain to purchase the suit schedule land, was settled by said K.Srinivasa Rao and plaintiff, for consideration of Rs.1,12,50,000/- and agreement of sale dated 13.02.2008 was executed with stipulation to pay balance sale consideration within five months. But the amount of consideration could not be paid in time due to their financial constraints. In fact, the plaintiff alone has no financial capacity to pay such huge amount. After paying an amount of

Rs.10,00,000/- on 18.12.2008 the plaintiff and his brother in law

K.Srinivasa Rao, expressed their inability to pay balance consideration and proposed to execute registered sale deed for proportionate extent of land for total amount of Rs.97,12,500/- paid to defendant No.1 till 18.12.2008. Accordingly, a registered sale deed No.1323/2008 dated 12.11.2008 was got executed in favour of Smt.Kummarikuntla

Padmavathi for an extent of Ac.1.00 gts. Said Kummarikuntla

Padmavathi is none other than the mother-in-law of plaintiff and mother of K.Srinivasa Rao. It may not be out of place to mention that defendant

No.1 can register the property in parts, in plots or en-block, in the name of plaintiff or in the name of other persons at the option of plaintiff, as per

Page No. 11 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

terms of the agreement of sale dated 13.02.2008. Out of good faith and bonafide belief, defendant No.1 executed said registered sale deed in the name of Kummarikuntla Padmavathi. Above registration was kept pending by registering authorities as valuation was disputed to save stamp duty. Another agreement of sale with ante date allegedly dated 13.10.2006 was also obtained in the name of Kummarikuntla

Padmavathi, for a consideration of Rs.12,00,000/- from defendant No.1 to support their family members who were actively involved in the above affairs.

iii) There is a discrepancy in respect of availability of Ac.1.12 ½ gts of suit schedule property. An extent of Ac.0.04 gts of land was alienated by defendant No.1 to one Podila Subhadra, W/o Bikshmaiah, who are neighbouring land owners on southern side of suit schedule property through agreement of sale in the year, 2007. Plaintiff and

K.Srinivasa Rao to make use of NSP land abutting to suit schedule land on northern side, have purposefully got mentioned the boundary allegedly as land alienated by defendant No.1 to one Kummarikuntla Valli

Kumari. Said Valli Kumari is none other than wife of K.Srinivasa Rao.

The plaintiff and his brother-in-law K.Srinivasa Rao, malafidely trying to take undue advantage of agreement of sale dated 13.02.2008 retained

Page No. 12 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

by them and northern boundary allegedly mentioned as land of

Kummarikuntla Vallikumari and filed above suit and also

O.S.No.259/2011 on the file of Senior Civil Judge’s Court, Khammam

against defendant No.1 seeking specific performance of oral agreement of sale. Defendant No.1 cannot have any objections, if plaintiff is desirous to get the registered sale deed executed in his favour by cancellation of registered sale deed No.323/2008 dated 23.10.2010 executed in favour of defendant No.2, his mother-in-law. It is pertinent to mention here that said sale deed No.P323/2008 is devoid of consideration and it was executed for the consideration of Rs.97,12,500/- paid till 18.12.2008 on agreement of sale dated 13.02.2008. Considering the above, conspicuous silence on the part of plaintiff, having paid

Rs.97,12,500/- by 18.12.2008 and seeking performance of agreement of sale dated 13.02.008 after lapse of nearly three years, does not inspire any confidence. Plaintiff and said K.Srinivasa Rao in connivance with defendant No.2 and Kummarikuntla Padmavathi, intended to gain wrongfully by blackmailing tactics, under the guise of agreement of sale

dated 13.02.2008, remained with them by chance. Finally defendant

No.1 prayed to dismiss the suit with exemplary costs.

Page No. 13 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

7. i) Defendant No.3 filed written statement, denying the plaint averments and further contending that the above suit is not maintainable either in law and on facts, Plaintiff alleging to have paid huge amount of

Rs.97,12,500/- under agreement of sale dtd. 18-12-2008 and kept silent till fag end of (3) years, does not inspire confidence. Such inordinate delay precludes plaintiff for grant of relief of specific performance. This defendant is not aware of alleged agreement of sale dt.18-12 2008, executed in favour of plaintiff by defendant No.1. Plaintiff is closely related to defendant No.2, who is none other than her son-in-law. One

Kummarikuntla Padmavathi is daughter-in-law of defendant No.2.

Defendant No.1 is close family friend of plaintiff, defendant No.2 and son of defendant No.2 namely Kummarikuntla Sreenu, defendant No.1 and 2 live in nearby houses. Defendant No.1 is said to own Ac.1.12 gts, of land in Sy.No.208/A, 1 & O, which was purchased through registered sale deed No.7635/2004 dated 23-06-2004. Said land of defendant No.1 is situated on northern side of land of this defendant No.3 and her husband late Podila Bikshamaiah i.e., Ac.1.04 gts, in Sy.No.206, 207 of

Khanapuram Haveli. Defendant No.3 and her husband bonafidely purchased a triangular piece of Ac.0.04 gts, of land from defendant No.1 through an agreement of sale dt.02-04-2007, for a consideration of Rs.2

Page No. 14 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

lakhs. Defendant No.3 paid Rs.50,000/- on 02-04-2007, Rs.30,000/- on 30-06-2007 and Rs.1 lakh on 20-07-2007 to defendant No.1. Defendant

No.1, he endorsed receipt of said on amounts of part of sale consideration on reverse of agreement of sale, defendant No.1 delivered possession over said Ac.0.04 gts, in favour of defendant No.3. Said

Ac.0.04 gts, of land is advantageous for defendant No.3, to get northern boundary of her land, a straight one. Subsequently, defendant No.1 suffered heart ailment and with other health problems. Defendant No.3 in good faith believed defendant No.1 in postponing execution of registered sale deed time and again, on pretext of said ill health. However defendant No.1 delivered possession of said Ac.0.04 gts, of land in

Sy.No.208 of Khanapuram Haveli, in favour of this defendant No.3, on 20-07-2007. Defendant No.3 got laid stone planks around boundary for their Ac.1.08 gts, land including Ac.0.04 gts, of land purchased from defendant No.1. Defendant No.3 in her own right has let out said land of

Ac.1.08 gts, in the year 2010 to one Cheepu Veeraiah for marble and granite business under the name and style as M/s Venkateswara Marble and Granite.

ii) While things stood thus, at first instance, defendant No.2 herein filed a suit for perpetual injunction vide OS.No.200/2011 on the file

Page No. 15 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of court of learned Senior Civil Judge, Khammam, against sons (6 No.s) of this defendant No.3 and one Bandi Sekhar. It was alleged that defendant No.2 herein is owner of Ac.1.00 of land in Sy.No.208/1, O, which was contended to be purchased from defendant No.1 herein through a registered sale deed (pending) No.P.323/2008 dated 18-12- 2008. Said Ac.1.00 gts of land of defendant No.2, claimed on north of land of husband of this defendant No.3, namely late Podila Bikshamaiah.

Defendant No.2 contended that, sons of this defendant No.3 tried to interfere with her Ac.1.00 gts of land. Defendants No.1 and 2 in connivance premeditatedly got referred an agreement of sale dt.13.10.2006 in recitals of said sale deed and mentioned incorrect boundary on north. Defendant No.2 filed a separate petition in

IA.No.843/2011 in OS.No.200/2011 for interim injunction and while

granting interim injunction learned Senior Civil Judge, Khammam, held that, respondents therein, who are sons of defendant No.3 herein can seek necessary legal remedy in the event of defendant No.2 herein, tries to interfere with land of defendant No.3 herein.

iii) It is also transpired that, another suit in OS.No.259/2011 on the file of Court of Senior Civil Judge, Khammam, was conclusively filed by one Kummarikuntla Valli Kumari, who is daughter-in-law of defendant

Page No. 16 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.2 herein, against defendant No.2 herein for specific performance to execute registered sale deed for Ac.0.12 gts of land in Sy.No.208/A, alleging oral agreement of sale purportedly on 24-09-2004. Said

OS.No.259/2011 was filed to countenance OS.No.200/2011. Plaintiff

herein is the person behind in filing above OS.No.200/2011 and

OS.No.259/2011. Though not admitting, defendant No.3 or any of her

family members do not have knowledge about alleged sale transactions in favour of plaintiff nor in favor of defendant No.2 and in favor of said

Kummarikuntla Valli Kumari, prior to filing of above respective suits. The extents of land in above OS.No.200/2011 and in OS.No.259/2011 are more than the extent of land physically available and own by defendant

No.1. In order to secure her interests and rights over Ac.0.04 gts, of land based on agreement of sale dt.02-04-2007, executed by defendant No.1, this defendant No.3 filed OS.No.223/2012 on the file of learned Senior

Civil Judge, Khammam, for specific performance to execute registered

sale deed, against defendants No.1 and 2 herein and Kummarikuntla

Valli Kumari, who is daughter in law of defendant No.1 and plaintiff in

OS.No.259/2011. Above circumstances manifestly explain that, plaintiff

herein, defendants No.1 and 2 are purposefully inventing litigation to deprive possession and interests of defendant No.3 over her Ac.0.04 gts.

Page No. 17 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

In furtherance of said object, above suit is filed as an afterthought based on alleged agreement of sale dt.18-12-2008. Considering the same suit relief for specific performance is frivolous and without any justification.

Plaintiff did not approach the Court with clean hands and he is not entitled for equitable relief of specific performance. More so, filing of above suit is abuse of process of court and prayed to dismiss the suit with costs.

8. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether defendant No.1 offered to sell land to an extent of Ac.1.12 ½ gts in Sy.No.208/A, 208/I and 208/O of Khanapuram Haveli to the plaintiff?

2.Whether defendant No.1 executed agreement of sale dated 13.02.2008 in favour of plaintiff by receiving Rs.28,12,500/- towards advance sale consideration? 3.Whether the plaintiff is the person behind filing of suit in

O.S.No.200 of 2011 and O.S.No.259 of 2011?

4.Whether the plaintiff is entitled to the relief as prayed for? 5.To what relief?

9. Subsequently, on the basis of amendment made to the plaint and in view of the additional evidence filed by the defendants, the following additional issue is framed on 02.03.2022.

Page No. 18 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Additional Issue:

“Whether the plaintiff is entitled for return of earnest money advance amount as prayed for?

10. At the time of trial, P.Ws.1 and 2 were examined and Exs.A1 to A7 are marked on behalf of plaintiff. On behalf of the defendants,

D.Ws.1 to 4 were examined and Exs.B1 to B9 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

11. The averments of the plaint in O.S.No.49 of 2016, in brief; are that:

i) That plaintiff and her husband late Bikshmaiah own land in

Sy.No.206 & 207 of Khanaapuram Haveli, Khammam (U) (M) & District of 110 ft. width By-pass road situated to south of said land of plaintiff and her husband. Land of defendant No.1, in Sy.No.208 is situated on north abutting to lands of plaintiff and her husband. An extent of Ac 0.04 gts, of triangular piece of land of defendant No.1, was purchased by plaintiff to set even dimensions of their previously existing land in Sy.No.206 & 207.

Bargain was settled for a consideration of Rs.2 lakhs; plaintiff paid

Rs.50,000/- to defendant as advance, an agreement of sale dt.02.04.2007 was executed by defendant No.1. Subsequently, plaintiff paid Rs.50,000/- on 30-06-2007 and Rs.1,00,000/- on 20-07-2007 to

Page No. 19 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

defendant towards part payment of consideration. Defendant acknowledged receipts of said part payments on reverse of agreement of sale. Further, on 20-07-2007 defendant No.1 delivered possession of said

Ac.0.04 gts, of land in part performance of agreement of sale and endorsed to the said effect on reverse of agreement of sale. Since then plaintiff has been in possession of Ac.0.04 gts, alienated by defendant, included in their land in Sy.No.206 & 207, constituting a compact block of

Ac.1.08 gts.

ii) Original agreement of sale dt.02-04-2007 executed by defendant No.1 in favour of plaintiff was filed in OS.No.200/2011 on the file of this Court. Subsequently defendant No.1 suffered heart ailment and also with other health problems. Plaintiff believed defendant in postponing execution of registered sale deed time and again, on the pretext of said ill health. Defendant made plaintiff to believe that, he has Ac.1.12 gts, of land to the north of land of plaintiff and her husband (in Sy.No.206 &207) at the time of entering in to agreement of sale dt.02-04-2007. However, plaintiff has been in possession of said Ac.0.04 gts, of land in Sy.No.208 of Khanapuram Haveli, which is suit schedule property. Rough sketch of suit schedule property is submitted for better appraisal. That, husband of plaintiff, died about 12 years back. Plaintiff and her sons have leased

Page No. 20 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

their land of Ac.1.08 gts, for past about more than one year, to one

Cheepu Veeresham, who is running marble and granite business in the name and style as M/s Venkateswara Marble & Granites. Along length of boundary of Ac.1.08 gts, plaintiff erected stone planks signifying their ownership and physical possession over the property, which include

Ac.0.04 gts, of suit schedule property.

iii) While things stood thus, defendant No.2 filed

OS.No.200/2011 on the file of this Court against sons of plaintiff for

injunction alleged to have purchased one acre of land from defendant

No.1 in Sy.No.208/E and 208/O and defendant No.2 and her sons tried to encroach in to part of Ac.0.04 gts, of land purchased by plaintiff from defendant No.1 i.e., suit schedule property. Defendant No.2 contended that, suit schedule property is part of alleged Ac.1.00 of land purchased sons, for perpetual injunction, alleging to by her from defendant No.1 through registered sale document No.P/323/2008 dt.12-11 2008.

Defendant No.2 filed a separate petition in IA.No.843/2011 seeking interim injunction in respect of suit schedule property herein. Further, the said injunction petition which was allowed by this Court on 22-07-2011, with a finding that, respondent therein, who is plaintiff herein to seek necessary legal remedy in the event petitioner therein defendant No.2

Page No. 21 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

herein, tries to interfere with land of plaintiff herein. Defendants No.1 and 2 in connivance have fraudulently brought up an agreement of sale with ante dated 13-10-2006, to defeat interests of plaintiff over suit schedule

Ac0.04 gts, of land purchased by her through agreement of sale dt.02-04 2007, Northern boundary for alleged Ac.1.00 of land related to agreement of sale dt.13 20-06 of defendant No.2 and sale document No.1211/2008 was motivatedly and vaguely mentioned as "land of defendant No.3".

iv) Defendant No.3 is none other than daughter in law of defendant No.2. That it is also transpired that, defendants No.1 and 2 collusively got filed another suit, OS.No.259/2011 on the file of this Court, by defendant No.3 against defendant No.1 for specific performance to execute registered sale deed for Ac.0.12 gts, of land alleging oral agreement of sale dt.24-09-2004 to countenance defence of plaintiff herein in IA.No.843/2011 in OS.No.200/2011. It took time to obtain certified copy of plaint in OS.No.259/2011 with permission. Above circumstances emulate that, defendants No.1 to 3 are purposefully inventing litigation to deprive possession and interests of plaintiff over suit schedule land of Ac.0.04 gts, under the guise of incorrect descriptions of property in their documents. Further it is to be ascertained, whether

Ac.1.12 gts of land available for defendant No.1 even after alienating

Page No. 22 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ac.0.04 of land in favour of plaintiff. That, plaintiff took legal notice dt.20- 09-2011 demanding defendant No.1 to execute registered sale deed in respect of suit schedule property. Defendant No.1 acknowledged receipt of legal notice on 28-09-2011 but failed to comply with the same. In the said circumstances, plaintiff cannot get a registered sale deed executed by defendant No.1 and can secure her possession in respect of suit schedule property, without legal course.

12. Defendant No.1 remained exparte.

13.Defendants No.2 and 3 filed common written statement, denying the material allegations made in the plaint and further contending that defendant No.2 in this suit filed 0.S.No.200/2012 on the file of this court against Podila Yadagiri Narasimha Rao, Podila Papa Rao, Podila

Muralikrishna, Podila Srinivasa Rao. Podila Linga Kaju sixamaiah, Podila

Sasi Kumar and one Bandi Sekhar for perpetual injunction, when they tried to encroach into the land in suit schedule property in

O.S.No.200/2011 and they falsely pleaded that defendant No.1 in this suit

executed an agreement of sale in favour of their mother for an extent of

Ac.0.04 gts of land in Sy.No.208/A, I, O. and filed the alleged agreement of sale in the said suit O.S.No.200/2011. That in I.A.No.843/2011 in

Page No. 23 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.200/2011 after hearing both sides, this court passed interim

injunction in favour of defendant No.2 in this suit, who is the plaintiff in

O.S.No.200/2011.

14. That having taken a false plea in O.S.No.200/2011, now the defendants 1 to 6 got this suit filed by their mother Smt.P.Subhadra, who does not know anything about the false pleas taken by her sons. The so- called agreement of sale dated 2.4.2007 is brought into existence in collusion with the defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. The defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. Defendant No.1 with hostile attitude towards defendant Nos.2 and 3 in this suit colluded with the plaintiff and her sons making a false pleas that he had sold an extent of

Ac.0.04 gts of land. The boundaries shown in the suit schedule property in their suit are not existent and there are no such boundaries on the spot and the defendant No.1 has no land with such boundaries as described by him or the plaintiff. The entire effort of the plaintiff and her sons is to grab Ac.0.40 gts of land from the possession of this defendant No.2 out of the suit schedule property in O.S.No.200/2011 on the file of this court.

The plaintiff is not entitled to any relief much less injunction. Defendant

Page No. 24 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.1 having sold his entire land in favour of these defendants is left with no land, as such, he cannot execute any agreement of sale is a false and baseless document. The plaintiff has approached the court with unclean hands and therefore she is not entitled to the suit claim. The plaintiff has no cause of action to file the suit and the suit is barred by limitation.

Finally, the defendants 2 and 3 prayed to dismiss the suit.

15. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the agreement of sale is true and valid? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree? 4.Whether the plaintiff is entitled for injunction? 5.To what relief?

16. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A8 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

17. The averments of the plaint in O.S.No.50/2016, in brief are that:

Page No. 25 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

i) The plaintiff is the owner and possessor of agricultural wet land measuring to an extent of Ac.1.00 gts i.e., Ac.0.20 gts in Sy.No.208/1 and Ac.0.20 gts in Sy.No.208/O, in single compact block situated at

Khanapuram Haveli, Khammam Urban Mandal, Khammam District, which is the suit schedule property. The plaintiff purchased the suit schedule property from erstwhile owner Seelam Venkateswarlu for the suit most respectfully for valid consideration through registered sale deed dated 12.11.2008 and registered on 18.12.2008 at the Joint Sub-Registrar

Office, Khammam. The Joint Sub-Registrar, Khammam has given document vide pending Registration No.323/2008, as the plaintiff disputed the valuation made by Joint Sub-Registrar Khammam.

Considering the dispute raised by the plaintiff, the District Registrar,

Khammam agreed to decrease the value of said land purchased by plaintiff i.e., suit schedule property by 20% and the plaintiff had paid the same and the proceedings were issued by the Joint Sub-Registrar, accepting the document for Registration and it was duly Registered and according to the Joint Sub-Registrar, Khammam, the Registered document will be returned to the plaintiff in due course after the approval is given by the competent authority and the proceedings issued by the

District Registrar, Khammam.

Page No. 26 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) That the plaintiff applied for Certified copy of the said pending Registered document for filing the same in the suit and accordingly Joint Sub-Registrar, Khammam has issued Certified copy of sale deed through which the plaintiff has purchased the suit schedule property. The Plaintiff undertakes to file the original Registered Sale deed as and when it is made available to her by Joint Subs Registrar,

Khammam at the earliest possible time. The plaintiff having purchased the suit schedule property is in peaceful possession and enjoyment of the same and the land is an agricultural land. But the same is kept fallow in view of the urbanization of the area presently, as many marble shops have been set up and now it is some what difficult to cultivate land. The defendants claiming to be neighbouring land owners, are trying to encroach upon the said land of the plaintiff without any sort of right. The plaintiff with a view to protect her property is erecting a barbed wire fencing around the suit schedule property in the month of October 2010 and the defendants made an attempt to interfere with the activities of erection of barbed wire around the suit schedule property. Since then repeatedly either the defendants or their men are making attempts to pull down the barbed wire fencing pillars erected by the plaintiff and the plaintiff could resist their illegal acts. The defendants are in a view to

Page No. 27 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

chase away the plaintiff from suit schedule property with malafide intention of knocking away the suit schedule property for a throw away price as the plaintiff is a helpless woman.

iii) The purchase of suit schedule property by the plaintiff has become an eye-sore to the defendants and some of the defendants are real estate agents who have caste their evil eye on suit schedule property. The plaintiff approached the concerned police for protection, but unfortunately no help was given by the police, citing the reason that it is a civil dispute, which in fact the attempt to tress pass into the suit schedule property by defendant, is also an offence, not withstanding the fact that it is a civil dispute. To protect her property from illegal attempts by the defendants, the plaintiff has no other way except to file the suit for perpetual injunction before this Court.

18. On the other hand, Defendant No.7 remained exparte.

19.Defendant Nos.1 to 6 filed common written statement, denying the material allegations of the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation who did not approach the court with clean hands and she is not entitled for equitable relief of injunction. Defendant No.7 is no way concerned to defendants No.1 to 6, plaintiff for reasons better known

Page No. 28 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

arrayed as defendant No.7. Admittedly southern boundary for suit schedule property covered under registered sale deed P.No.323/2008 dt.12-11-08, is land of father of defendants No 1 to 6. Similarly in certificate dt.27-08-2004 issued by Mandal Revenue Officer, Khammam (U) (M), appended to the said sale deed southern boundary is mentioned as land of father of defendants No.1 to 6. As per the recitals of said sale deed, one Seelam Venkateswariu vendor of plaintiff, own Ac.1.12 ½ gts, în Sy.No.208/A, 208/1 & 208/0, out of which Ac. 1.00 was alienated in favour of plaintiff through said sale deed, which is allegedly described as suit schedule property. Northern boundary in Certificate issued by MRO, is mentioned as NSP main canal acquired area for an extent of Ac.1.10 gts,. While the extent is enlarged to Ac.1.12 gts, in occupancy certificate issued by Revenue Divisional Officer, dt.25-09-08. Seelam Venkateswarlu vendor of plaintiff, alienated a triangular piece of appurtenant land over an extent of Ac.0.04 gts, out of Sy.No.208/A, 208/1 & 208/0 to north of land of defendants No.1 to 6 in Sy No.206 and 207 through an agreement of sale dt.02-04-07 for a consideration of Rs.2,00,000/- in favour of Podila

Subhadra/mother of defendants No.1 to 6. Further, Seelam

Venkateswarlu vendor has delivered possession of said Ac.0.04 gts, of land under endorsement dt.20.07.2007 on the reverse of said agreement

Page No. 29 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of sale. Including said Ac.0.04 gts, father of defendants No.1 and 6 and their mother own compact block of Ac.1.08 gts, in S.No.206, 207 &208.

20. Defendant No.1 and 6 and their mother have been in absolute and uninterrupted possession of Ac.1.08 ¾ gts and the same was leased to one Cheepu Veeresh, who is running marble and granite business in the name and style as "Sri Venkateswara Marbles for past more than one year. Around the boundary, defendants Nos.1 to 6 has erected stone planks before it was leased, which signify their physical possession over

Ac.108 gts. Photographs dt.02-07-2011 closely depict the line of stone planks (12 Nos) on western boundary of land of defendants No 1 to 6.The description of suit schedule property alleging agricultural land of

Kummarikuntla Vallikumari, later NSP main canal on northern side, is erroneous and motivatedly mentioned. Defendants No.1 to 6 reliably came to know that, said Kummarikuntia Vallikumari none other than daughter in law of plaintiff. Plaintiff under the guise of such wrongly described northern boundary trying to encroach part of Ac.1.08 3/4 gts of defendants No.1 to 6, without any right or concern. Plaintiff failed to submit any rough sketch to establish her possession as per alleged northern boundary of Kummarikuntla Vallikumari and the land mark of

NSP acquired land. More-so, plaintiff instead of standing on her own legs

Page No. 30 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

alleged that, defendants No.1 to 6 admitted that, suit schedule property is situated on northern side of their land in her counter filed in interlocutory application, which is misconceived. It is pertinent to mention that, plaintiff failed to disclose extent of alleged land of Kummarikuntla Vallikumari and it's survey numbers on north and western side of suit schedule property, which is a material suppression.

21. It appears that, plaintiff in connivance with Seelam

Venkateswarlu has created agreement of sale allegedly dt.13-10-2006 and recitals in registered sale document No.P/323/2008 did 12-11-2008 allegedly referring said agreement of sale dt.13-10-06 are premeditated as a make believe affair that, sale transaction in favour of plaintiff is prior to sale transaction in favour of Smt.Podila Subhadra, mother of defendants No.1 to 6. It is incorrect to allege that, from October 2010 defendants No.1 to 6 are making attempts to interfere with possession and enjoyment of plaintiff and that, she started erecting barbed wire fencing, is baseless. It is also incorrect that, during 2" and 3 weeks of

June 2011 made an attempt to interfere with possession of plaintiff, to pull down the pillars of barbed wire fencing Photographs submitted by defendants No.1 to 6 do not show any barbed wire fencing on any comer near by land of defendants No.1 to 6. Mean-while it is transpired that,

Page No. 31 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Kummarikuntla Vallikumari daughter in law of plaintiff collusively filed OS

No.259/2011 on the file of this Court, against Seelam Venkateswarlu, for specific performance of contract alleging oral agreement of sale, as counter blast to above contention of defendants No.1 to 6. Finally, defendants 1 to 6 prayed to dismiss the suit.

22. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the plaintiff is in peaceful possession and enjoyment over the plaint schedule property, as on the date of filing of this suit? 2.Whether the plaintiff is entitled for consequential permanent injunction? 3.To what relief?

23. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A3 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked on behalf of the defendants.

24. The averments of the plaint in O.S.No.51/2016, in brief are that:

i) That plaintiff entered into an oral agreement of contract with the defendant to purchase the suit schedule property measuring to an extent of Ac.0-12 ½ 2gts. from and out of Sy.No.208/A situated at

Khanapuram Haveli Revenue village, Khammam Urban for a total

Page No. 32 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration of Rs.2,00,000/- on 24.09.2004. The defendant received the said sum towards entire sale consideration for the suit schedule property and out of good faith, the oral agreement was not reduced into writing and the said transaction took place on 24.09.2004 in the presence of mediators namely Kesa Srikanth, Mellacheruvu Laxmikantha Rao and

B.Mahinder Singh. The suit schedule property and another extent of

Ac.1.00 gts was purchased by the defendant through registered sale deed bearing document No.7635/2004 on 23.09.2004 (single compact block) and at the time of said registration, the defendant informed the husband of the plaintiff that to clear the debt incurred by him, white purchasing this suit land and another extent of Ac.1.00 gts through the said registered sale deed No.7635/2004, be needed some aspect, as such, he offered to sell the suit schedule property for Rs.2,00,000/ in the presence of above said elders.

ii) Subsequently to the oral agreement of sale dt.24-09-2004, the defendant executed an agreement of sale dt.13-10-2006 selling the remaining extent of Ac.1-00 gts in favour of Smt.Kummarakuntla

Padmavathi, the mother-in-law of plaintiff and later, he executed a registered sale deed bearing document P-323/2008, dt.12-11-2008 for the said extent of Ac.1.00 gts. The defendant is left with no land which had

Page No. 33 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

purchased through registered sale deed bearing document

No.7635/2004, dt.23-09-2004 from his vendor. That having sold the suit schedule property in favour of the plaintiff in this suit, through an oral agreement of sale and having sold the remaining extent of Ac.1-00 gts of land in favour of the mother-in-law of the plaintiff, the defendant delivered two original registered sale deeds pertaining to the suit schedule property and another extent of Ac.1-00 (which is a single com pact block) to the mother-in-law of the plaintiff. Therefore, it is established that the defendant entered into an oral agreement of sale with the plaintiff offering to sell the suit schedule property for a total consideration of Rs.2,00,000/ and also delivered possession of the suit land on the date of oral agreement of sale itself. That on the request made by the plaintiff, her mother-in-law (K.Padmavathi) handed over the two original sale deeds to the plaintiff.

iii) The defendant while executing the registered sale deed in favour of the mother-in-law of the plaintiff, admitted the fact that the suit schedule property in this suit was sold in favour of the plaintiff, which is abutting to the Ac.1-00 of land sold by the defendant in favour of mother- in-law of the plaintiff..in the registered sale deed No.P-323/2008 by mentioning the suit schedule property in this suit as the land sold in

Page No. 34 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

favour of the plaintiff in this suit. The suit schedule property in this suit is situated on the northern and part of western side of Ac.1.00 gts of land covered by registered sale deed No.P323/2008 executed in favour of

K.Padmavathi, the mother-in-law of plaintiff by the defendant. The plaintiff demanded the defendant to execute the registered sale deed in respect of the suit schedule property , but the defendant had postponed the same on one pretext or the other and there is no hope of defendant executing the registered sale deed in near future. Hence the suit for specific performance of contract basing on the oral agreement of sale dated 24.09.2004.

25. i) Defendant filed written statement, denying the material allegations made in the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation and she did not approach the court with clean hands and she is not entitled for specific performance of agreement, as alleged.

The suit is filed for specific performance of contract allegedly dated 24.09.2004 orally entered by plaintiff and defendant, to sell Ac.0.12 ½ gts, in Sy.No.208/A in the presence of Kesa Srikanth, Mellacheruvu

Lakshmikantha Rao and B.Mahinder is incorrect and denied. It is also incorrect that, defendant received Rs.2 lakhs from plaintiff towards sale

Page No. 35 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration and that delivered possession of suit land in favour of plaintiff. Except vague and self serving allegations, plaintiff failed to disclose cause of action to file above suit. Further plaintiff alleging to have demanded defendant to execute registered sale deed does not arise.

One Mylavarapu Kondal Rao, is the person behind above litigation. Said

Kondal Rao was closely associated with defendant in his business and gained active confidence. Said Konidal Rao purchased land in Sy.No.208 of Khanapuram Haveli, from this defendant through an agreement of sale dt.13-02-2008 for a consideration of Rs1,12,50,000. He obtained a registered sale deed dt.12-11-2008 in favour of his mother in law one

Kummarikuntla Padmavathi and for his convenience an agreement of sale dt.13-10-2006, for Ac.1.00 gts of land in Sy.No.208.

ii) In said documents, said Kondal Rao got mentioned northern boundary as land of petitioner up to NSP main canal. Said boundary was got mentioned by Mylavarapu Kondal Rao, stating that, he can make use of land margin available between NSP canal on the basis of said description. As such, the petition schedule property is fictitious and physically no land as such exists. Said Kamarikuntla Padmavathi none other than mother in law of plaintiff. In fact extent of land of Ac.1.12 ½ gts, in schedule of property as per registered sale deed No.7635/2004

Page No. 36 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

dt.23-09-2004 not physically available within described boundaries.

Defendant delivered his original registered sale deeds (2 Nos) to

Kummarikuntla Padmavathi at the time of execution of registered document dt.12-11-2008, as she purchased major part of land of defendant. It is imaginary to allege that, defendant entered into oral agreement of sale with plaintiff and delivered possession of suit schedule land for consideration of Rs.2 lakhs. Capacity of plaintiff to pay Rs.2 lakhs is also denied.

iii) It is not out of place to mention that, plaintiff did not take any pains to cause legal notice demanding defendant to execute registered sale deed although for (7) years which is beyond any stretch of imagination. Self serving allegations in the plaint manifestly explains fraudulent claim of plaintiff. Under the guise of incorrect description of boundary mentioned in registered sale deed executed in favour of

Kummarikuntla Padmavathi, plaintiff in connivance with said Mylavarapu

Kondal Rao filed above suit malafidely to harass this defendant and to have wrongful gain and finally prayed to dismiss the suit with exemplary costs.

26. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office or trial:

Page No. 37 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

1.Whether the oral agreement of sale between the parties is true, valid and binding on the defendant? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree?

27. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A4 are marked on behalf of plaintiff. On behalf of the defendants, D.W.1 was examined and Exs.B1 and B2 were marked.

28. After conclusion of trial in all the four suits, since the subject matter of the property involved is one and the same and as per the orders in Transfer O.P.No.747/2015 dated 03.03.2016, heard the arguments on both sides in all the suits to deliver common judgment, in order to avoid conflicting opinions and judgments. In addition to the oral arguments, learned counsel for the defendant No.1 in O.S.No.26/2012 also submitted written arguments, in support of his contentions.

ISSUE No.1 TO 4 AND ADDITIONAL ISSUE IN O.S.No.26 of 2016:

29.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

30. At the outset, it is pertinent to note here that deceased plaintiff

No.1 is none other than the son-in-law of Kummarikuntla Padmavathi,

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who is the defendant No.2 herein and Valli Kumari is the daughter-in-law of defendant No.2, who filed O.S.No.51/2016. For the reasons best known, defendant No.2 has remained exparte and did not choose to contest the matter.

31.In support of the aforesaid contentions, the plaintiff himself got examined as PW.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the plaint in toto. P.W.1 in his further examination in chief, marked Exs.A1 to A4. Subsequently, he died and hence his evidence and the marking of documents cannot be looked into.

32. Subsequently, plaintiff No.4 got examined himself as P.W.2, who requested to treat the evidence affidavit for examination in chief filed by P.W.1, wherein he reiterated the contents of the plaint in toto. PW.2 in his further examination in chief marked Exs.A1 to A5 documents, among them Ex.A1 is the agreement, Ex.A2 is the payment endorsement, Ex.A3 is the office copy of legal notice dated 10.1.2011 got issued by plaintiffs,

Ex.A4 is reply notice dated 28.1.2011 and Ex.A5 is reply notice dated 17.2.2011 got issued by plaintiffs to defendant No.1. Ex.A5 is the copy of rejoinder notice dated 17.02.2011 consisting of endorsement of counsel for the defendant. Ex.A6 is the photograph along with C.D. depicting the

Page No. 39 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

name board of Sri Venkateswara Marbles, Bye-pass Road, Khammam and Ex.A7 is the copy of registration details issued by Commercial Tax

Department were marked through D.W.3. During the course of cross examination of P.W.2, he had categorically admitted that there are cordial relations between his family and the family members of defendant No.1 and that his grandmother-defendant No.2 purchased the property from defendant No.1. He has further admitted that as and when the properties are purchased by his family and family of defendant No.2, they used to inform each other about the particulars of the properties to be purchased.

The land purchased by his father and the land purchased by his maternal grandmother are one and the same. Father of P.W.2 sustained monetary loss and his grandmother acted detrimental to the interest of his father.

He has further stated that his mother along with her brothers and maternal grandmother and maternal aunts have purchased Kinnerasani

Theatre under Ex.B1 sale deed, which speaks volumes about their knowledge for purchase of any property. Though he was cross examined at length, nothing adverse is elicited to disbelieve the testimony of P.W.2.

33. To rebut the evidence of P.Ws.1 and 2, D.Ws.1 to 4 are examined on behalf of defendants. Originally P.Y.L.Narasimha Rao, who is the son of defendant No.3, who filed his evidence affidavit for

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examination in chief, wherein he reiterated the contents of his written statement in toto. But instead, Singisala Venkateswar Rao appeared in the court for cross-examination as per the orders in I.A.No.1989/2018

dated 03.12.2018, wherein it was elicited that Seelam Venkateswarlu

purchased land in Sy.No.208 to an extent of Ac.1.02 ½ gts of land under registered document, but the actual land made available is only Ac.1.10 gts. He had admitted that Kondal Rao filed the present suit stating that he purchased Ac.1.12 ½ gts from Seelam Venkateswarlu under sale agreement. Through this witness, Exs.B2 to B6 are marked. The sale transaction under Ex.A8 sale deed was executed in favour of defendant

No.2 for an extent of Ac.1.00 gts of land is the same transaction, where

D.W.4 entered into sale agreement with plaintiff No.1 under Ex.A1 and the said extent alleged to had been sold in favour of defendant No.2, which is said to be on northern side of Ac.0.04 gts of land sold to defendant No.3 under Ex.B7 which is no way concerned to the land covered by Ex.A1 in favour of plaintiff. D.W.4 further stated that to avoid stamp duty charges for a lesser price, agreement of sale under Ex.B9

dated 13.10.2006 was executed. In Ex.B4, the northern boundary

mentioned as the land of Valli Kumari for obtaining permission as there was N.S.P. left branch canal to the boundary of the land. The extent of

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land was mentioned as Ac.1-12 gts based on the document of vendor and admitted that he sold Ac.0.04 gts to defendant No.3 under Ex.B7.

Through him, Exs.B2 to B6 are marked, among them, Ex.B2 is the certified copy of plaint with summons in O.S.No.200/2011 on the file of

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.50/2016),

Ex.B3 is the certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.51/2016),

Ex.B4 is the certified copy of plaint in O.S.No.223/2012 on the file of the

Senior Civil Judge’s Court, Khammam (renumbered as O.S.No.49/2016),

Ex.B5 is the written statement filed by Seelam Venkateswarlu in

O.S.No.259/2011 and Ex.B6 is the certified copy of registered sale deed

bearing document No.7635/2004 dated 23.09.2004 executed in favour of

Seelam Venkateswarlu. It is pertinent to note here that Ex.B1 attested copy of registered sale deed bearing document No.4686/2012 dated 12.04.2012 executed by P.Asha Kumari and others.

34. Though the evidence affidavit of D.W.2 was filed, but she did not turn up for her further chief examination and cross examination stating that she fell ill. Accordingly, the evidence affidavit of D.W.2 was eschewed.

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35.D.W.3, who happened to be the business man dealing with marble and granite slabs business under the name and style of Sri

Venkateswara Marbles & Granites filed his evidence affidavit for examination in chief, wherein he deposed that D.W.2 executed lease agreement dated 20.08.2010 in his favour for five years i.e., till 31.08.2015 and the same lease was extended orally. He further deposed that he paid Rs.20,000/- towards monthly rent and presently he is paying

Rs.25,000/- per month. He has further deposed that in the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land and that he and his workers went in aid of sons of D.W.2 to resist them. Exs.A6 and A7 are elicited through this witness.

36. Defendant No.1 got examined C.W.1 in O.S.No.49/2016, wherein it was elicited that Kummarikuntla Srinivasa Rao-D.W.2 is the son of defendant No.1 and husband of defendant No.2, who used to call him as Babai and their houses are located very nearer and got good relations with his family members. It is very pertinent to note here that

C.W.1 categorically deposed that he had Ac.0.04 gts of land which is situated on southern and eastern side of his land. He further admitted that, he sold his land to the plaintiff, which is in triangle shape. On confrontation of Ex.A1, agreement of sale, admitted his signatures and

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also the contents of the agreement and so also the endorsements dated 30.06.2007 and 20.07.2007 made on the rear side of the agreement. He has further admitted that while purchasing the land, he got it measured and then it was one acre 12 and half guntas, later a canal was found in which he lost his two guntas of land and hence he own 10 and half guntas of land. He lost his two guntas of land after his sale transaction with Podila Subhadra and that government has not given any compensation for two guntas of land. He admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu Kondal Rao, plaintiff in O.S.No.26/2012 for sale consideration of Rs.1,12,00,000/- and odd and that he executed sale deed in favour of K.Padmavathi, plaintiff in

O.S.No.50/2016 on 12.11.2008. Among three members mentioned

above, initially he sold the land to P.Subhadra and executed an agreement of sale dated 13.01.2006 in favour of K.Padmavathi for getting concession in stamp duty, the registration was kept pending. He did not enter into any transaction with Valli Kumari, plaintiff in O.S.No.51/2016, who filed suit against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts.

37. Further, C.W.1 admitted that he had good terms and that he executed agreement of sale dated 13.10.2006 under Ex.B4 in favour of

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Padmavathi for getting concession in stamp duty and the registration was kept pending. He categorically admitted that he did not enter into any sale transaction with Valli Kumari (defendant No.3) and clarified the location of suit schedule property sold to Podila Subhadra on southern side of land of Ac.1.00 gts sold to Padmavathi. Having paid huge amount of

Rs.97,12,500/- by 18.12.2008, either in plaint or in the evidence of P.W.1, the same do not disclose the reason for time taken for three years period for Ex.A1 agreement of sale was about to be completed. Ex.B8 sale deed was executed in favour of defendant No.2 on 12.11.2008 i.e., a day after

Rs.7,00,000/- part sale consideration paid on 11.11.2008, one of Ex.A2 part payment endorsements on reverse side of Ex.A1 agreement of sale.

More particularly execution of Ex.A1 sale deed correspond with Ex.A2 endorsement of part payment of Rs.10,00,000/- made on 18.12.2008, establish and conclude sale transaction under Ex.A1 agreement and part payment made under Ex.A3 by execution of Ex.B8-sale deed for Ac.1.00 gts in favour of defendant No.3. Thus, defendant No.2 left suit claim in this suit in O.S.No.26/2012 uncontested, while she is seriously contesting the suit for specific performance of suit schedule to an extent of Ac.0.04 gts and in O.S.No.50/2016 for perpetual injunction for same extent of

Ac.0.04 gts of land, manifests that, in collusion with the plaintiffs and

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defendant No.2 are hand in glove with each other. Certified copy of partnership deed dated 15.02.2013 (Ex.B10) pertaining to M/s Sai

Krishna Constructions reveal that the family members of defendant No.2, plaintiffs 2, 3 and 6 are the partners in the said firm and partnership deed was attested by deceased plaintiff No.1. Ex.B10 reveal collusion among the plaintiffs and family members of defendant No.2 to harass the plaintiffs to have wrongful gain. Having regard to the facts and circumstances of the case and keeping in view the voluminous oral and documentary evidence on both sides, the agreement of sale under Ex.A1 between the parties cannot be relied and acted upon the parties.

38. Learned counsel for defendants 3 to 9 sought to rely on the following decisions in support of their respective contentions.

1.Judgment of Hon’ble Supreme Court in Civil Appeal No.147-148 of 2021 decided on 05.10.2020 between Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha.

2.Judgment of Hon’ble Supreme Court in Civil Appeal No.4703- 2022 (Arising out of SLP (C) No.19463 of 2018) decided on 12.07.2022 between U.N.Krishna Murthy (Since Deceased) Thr. Lrs. Vs. A.M.Krishna Murthy.

By relying on the above judgments, the learned counsel for the defendants 3 to 9 contended that since the plaintiffs have not shown the essential ingredients of ready and willingness, which relates to the conduct of the plaintiffs and they have not shown any bonafides by show

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of any cogent and convincing evidence to consider the relief of specific performance of contract.

39. The plea of limitation referred to was that the averment of readiness and willingness required by Section 16 (c) of the Act was part of the cause of action for the suit and therefore the suit itself was liable to be dismissed as barred by limitation. It was this plea raised by the defendant that was left open for consideration at the trial of the suit.

Subsequently, the original plaintiff Kondal Rao died and his legal representatives were impleaded as supplemental plaintiffs in the suit. The averment of readiness and willingness on the part of the plaintiffs was part of the cause of action for the suit. The contention raised by the defendants is that a recital regarding readiness and willingness of the plaintiffs to perform the essential terms of the contract is part of the cause of action for the suit in view of the provisions contained in Section 16 (c) of the Act and the prescriptions in forms 47 and 48 of Appendix A to the

C.P.C. Section 16 (c) provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms, the performance of which has been prevented or waived by

Page No. 47 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

the defendant. Forms 47 and 48 of Appendix A to the C.P.C. work out this requirement with appropriate recitals in model plaints. The defendants’ contention is that this recital goes to the root of the matter, and unless it finds a place in the plaint within the period of limitation prescribed by law, the entire suit has to fail. Admittedly, the part payments made by 13.02.2008 and the suit was presented on 16.12.2011. Added to it, the plaintiffs failed to file any documentary proof in support of their claim that they deposited the balance amount in any bank and thereby ready and willing to perform their part of contract according to the recitals of the agreement of sale. Having regard to the oral and documentary evidence adduced by both sides, there is a dispute between the parties regarding the extent of land alleged to have been sold and therefore this court is of the considered view that the relief of specific performance of contract cannot be concluded, but at the most the plaintiffs are entitled to the alternative relief for refund of the earnest money under the additional issue. Thus, the plaintiffs are not entitled to the relief of specific performance of contract and for declaration of the registered sale deed bearing document No.P323/2008 dated 12.11.2008 as null and void and not binding on the plaintiffs, except the alternative relief under additional issue directing the defendants No.1 to refund the earnest money of

Page No. 48 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Rs.97,12,500/- together with interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of suit, till the date of realization on Rs.97,12,500/-. Issues No.1 to 4 and additional issue are answered accordingly.

50. Heard both sides. Plaintiffs and defendant No.2 and 3 also filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.49 of 2016:

51.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

52. At the outset, it is pertinent to note here that except the plaintiffs in this suit, all other parties in the three remaining suits are related and the subject matter in all belongs to one and the same family.

Kummarikuntla Padmavathi-defendant No.2 herein filed O.S.No.590/2016 for perpetual injunction against plaintiffs 2 to 7 herein and one Bandi

Sekhar in respect of land to an extent of Ac.1.00 gts in Sy.No.208/I, O, alleged to have been purchased from Seelam Venkateswarlu-defendant

No.1 herein. Subsequently, Kummarikuntla Valli Kumari-defendant No.3 herein filed O.S.No.51/2016 for specific performance against Seelam

Venkateswarlu in respect of Ac.0.12 ½ gts in Sy.No.208/A alleged to have

Page No. 49 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

been purchased from Seelam Venkateswarlu-defendant No.1 herein, basing on oral agreement of sale dated 24.09.2004. Plaintiff No.1 filed the above suit for specific performance of and for perpetual injunction, against Seelam Venkateswarlu-defendant No.1, in respect of Ac.0.04 gts in triangular piece of land out of Sy.No.208 of Khanapuram Haveli, through Ex.A1 agreement of sale dated 02.04.2007 for consideration of

Rs.2,00,000/-. Plaintiff No.1 paid Rs.50,000/- on 02.04.2007, Rs.50,000/- on 30.06.2007 and Rs.1,00,000/- on 20.07.2007 to defendant No.1 towards sale consideration and possession was also delivered on 20.07.2007 and to the said effect, defendant No.1 also endorsed on the reverse of Ex.A1 agreement of sale dated 02.04.2007.

53. In order to prove the case, P.W.1 was examined on behalf of plaintiff, who fled his evidence affidavit for examination in chief, wherein he reiterated the contents of the plaint in toto. During his further examination in chief, marked Exs.A1 to A8 on his behalf. Apart from

P.W.1, plaintiffs also examined P.Ws.2 and 3, who filed their evidence affidavits for examination in chief, wherein they supported the evidence of

P.W.1 in all respects.

54. On behalf of defendants, D.W.1 filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written

Page No. 50 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

statement chief in toto. During his further examination in chief, got marked Exs.B1 to B3 to B7. Apart from the evidence of D.W.1, the defendants also examined D.W.2 on their behalf. During the cross examination of D.W.1, it was elicited that she, D.W.2 and his family members and her both sons live together and her daughter Aruna is wife of Mylavarapu Kondal Rao. She has further admitted that her son-in-law

Mylavarapu Kondal Rao had passed away about four years back i.e., from 05.03.2021. During the life time of late Kondala Rao, her daughter and her family members are residents of Gandhi Chowk, which is nearer to their residence and there are cordial relations among their family and the family members of her son-in-law M.Kondal Rao and the same relationship is continued. It is pertinent to note here that C.W.1 categorically admitted during his cross examination that he sold away the suit schedule property in favour of deceased Plaintiff and the same is evident from Ex.A1 and the part payments made on the reverse of the agreement of sale i.e., Ex.B3.

55. Apart from the above evidence, defendant No.1 is examined as C.W.1, who stated that he is the defendant No.1 in the above suit and did not file any written statement. He has further stated that he did not receive any summons and notices from the court to give evidence. He

Page No. 51 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

has further stated that he knows one Kummarikuntla Srinivasa Rao for more than 10 years. Their houses are located very nearer and that said

Srinivasa Rao used to call him as Babai. He has further stated that he own total extent of Ac.1.12 ½ gts in Sy.No.208. While purchasing the land, he got it measured and then it was Ac.1.12 ½ gts, later a canal was found in which he lost his two guntas of land after his sale transaction with Podila Subhadra. He has further deposed that government has not given any compensation for two guntas of land. He has admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu

Kondal Rao for sale consideration of Rs.1,12,00,000/- and odd. He has further admitted that he executed sale deed in favour of K.Padmavathi on 12.11.2008 for an extent of Ac.1.00 gts and the same was registered on 18.12.2008. Among three members mentioned above, initially he sold to

P.Subhadra and he executed an agreement of sale dated 13.01.2006 in favour of Padmavathi for getting concession in stamp duty and the registration was kept pending. He has further stated that he did not enter into any sale transaction with Valli Kumari. He has further admitted that

Valli Kumari has filed O.S.No.51/2016 against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts. He had denied other suggestions put to him. When this witness was

Page No. 52 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

confronted with Ex.A1 agreement of sale, he admitted his signature and also endorsements and contents on the reverse of the agreement of sale.

By the evidence of this witness, it is crystal clear that he alienated an extent of Ac.0.04 gts in favour of deceased plaintiff No.1.

56. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A9 and the evidence of defendant No.1 as C.W.1, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for specific performance of contract and consequential relief of perpetual injunction.

Issues No.1 to 4 are answered accordingly.

57. Heard both sides. Both sides filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.50 of 2016:

58.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

59. In order prove the suit claim, plaintiff has examined herself as

P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A3 on her behalf, among them Ex.A1 is the certified copy of registered sale deed bearing document No.4310/2012 dated 12.11.2008, Ex.A2 is the proceedings issued by the District Registrar, Khammam vide

Page No. 53 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.MV/47/A/88/20009 and Ex.A3 is the original agreement of sale dated 13.10.2006.

60. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she expressed ignorance about the measurements and her son verified the title documents. She stated that even by the year, 2006, she was the resident of Khammam and she is not having any relatives at Suryapet. She expressed her ignorance about purchase of stamp paper and drafting of sale agreement was purchased at Suryapet.

She denied the suggestions that Ex.A3 agreement of sale is no way relating to the sale transaction and land of Subhadra was in Sy.No.208.

She has further stated that she did not verify as to whether any document was in existence showing the measurements and boundaries of the schedule property in which she is in possession of the land and she can identify the suit schedule property. P.W.1 stated that land of Subhadra was leased out to Marble shop up to her southern boundary and categorically admitted that Subhadra leased out Ac.1.08 ¾ gts of land to

Marble shop up to the stone poles. She stated that her daughter in law purchased Ac.0.12 ½ gts of land and since the date of her purchase and even prior to that the land is vacant. She admitted that she is having

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cordial relationship with her son-in-law and there are no differences and disputes in between her family and the family members of her daughter and that her son-in-law filed a suit before the court against Seelam

Venkateswarlu stating that he also purchased the same property. She is not contesting the said suit. She expressed that she does not know whether her son in law purchased the property by paying sale consideration and that she purchased the property for Rs.12,60,000/-.

She expressed ignorance as to whether the value of the land is one crore or above. She denied the suggestion that she and her daughter-in-law only to grab the property of Subhadra got created a sale agreement with ante date, so also other suggestions.

61. P.W.2-Kummarikuntla Sreenivasa Rao stated that he is the son behind the litigation related to said four suits. He has further stated that he purchased Ac.0.12 ½ gts of land for his wife Valli Kumari in the year 2004 and the property was got measured prior to registration, but the northern boundary of the property was purchased by his wife, NSP canal was not confirmed with NSP authorities and not confirmed the boundaries of survey numbers of Bikshamaiah by appointing government surveyor. He admitted that as per the certificate given by M.R.O. in

Dis.No.B/9957/2004 the extent mentioned as Ac.1.10 gts, which is part of

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Ex.A1 sale deed. He has further admitted that he did not file any document with regard to taking of measurements of land with confirmation of his vendor. Except the registered sale deed-Ex.A1 executed by the vendor in favour of his mother, he had no documentary proof to show that his mother is in possession of the property since the date of purchase and that he did not file any document to show that his vendor handed over possession of Ac.0.12 ½ gts of land of his wife.

62. P.W.3-Mahender Singh Bharadwaj, who is one of the attestors to Ex.A1 sale deed supported the evidence of P.Ws.1 and 2. During the course of cross examination, he denied the suggestions such as he was not present at the time of transaction dated 13.10.2006 and no transaction took place between Seelam Venkateswarlu and and the plaintiff.

63. In support of the contentions of the defendants, the defendant

No.1 himself got examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the written statement in toto. D.W.1 in his further examination in chief marked Exs.B1 to

B5 documents, among them, Ex.B1 is the sale agreement dated 02.04.2007,

Ex.B2 is the endorsement on reverse of the agreement of sale, Ex.B3 are two photographs with C.D., Ex.B4 is the receipt issued by the photographer and

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Ex.B5 are the three photographs.

64. During the course of cross examination, D.W.1 admitted that he did not file any document to show that he is having land to an extent of

Ac.1.04 ¾ gts in Sy.No.206 and 207. He has further admitted that some of the land in Sy.No.206 and 207 was acquired for laying bypass road, after that the remaining land belongs to him. Total extent of land in

Sy.No.206 and 207 is Ac.0.35 gts and Ac.0.38 gts and that his land is towards northern side of bypass road, which is a triangular piece of bit and that the eastern side boundary is zero. He denied the suggestion that towards northern side of his property, the property of Padmavathi is situated, which he denied. He further stated that there is land of Seelam

Venkateswarlu towards his northern side and he does not know who purchased the same. The plaintiff filed suit stating that he tried to encroach into the land of Padmavathi.

65. The defendants also examined D.W.2, who filed his affidavit for examination in chief, wherein he stated that himself and his brother-in- law Cheepu Veeraiah have been dealing with marble and granite slabs business in the name and style of Sri Venkateswara Marbles and

Granites since 2010 in Ac.1.08 ¾ gts of land belong to Podila Subhadra, on lease and that stone planks were erected on boundaries for the said

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land. An agreement of lease dated 20.08.2010 was executed by

Smt.Subhadra and her sons in their favour, for a period of five years till 31.08.2015. Later, his lease was extended orally and that initially, they paid Rs.20,000/- towards monthly rent and at present they are paying

Rs.25,000/- pr month. During the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land, then himself and their workers went in aid of sons of Smt.P.Subhadra to resist them. During the course of cross examination, Ex.A4-photograph and

Ex.A5-copy of registration details issued by the Commercial tax department. D.W.2 admitted that he mentioned the location of shop in

Sy.No.206 and 207 in Ex.A5.

66. As seen from the evidence of D.W.2, he alleged to have been carrying on his business in Sy.Nos.206 and 207 even as per Ex.A5 also, whereas the claim of the plaintiff in respect of land measuring to an extent of Ac.0.20 gts in Sy.No.208/I and Ac.0.20 gts in Sy.No.208/O, total measuring Ac.1.00 gts in single compact block. Thus, the evidence of

D.Ws.1 and 2 is contradictory to each other and they are uncertain about their land. Therefore the inconsistency in the evidence of D.Ws.1 and 2 and the survey numbers as spoken to by D.W.1 and D.W.2 differs from that of P.Ws.1 to 3. Admittedly, Exs.B1 to B5 reveal running of Sri

Page No. 58 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Venkateswara Marbles and Granites, Khammam. These Exs.B1 to B5 are the certified copies and the originals of which are filed in

O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam.

These documents do not reflect conducting of any marbles and granites business in the land being claimed by the defendants, except a nominal board depicting as Sri Venkateswara Marbles and a Mini Lorry kept underneath the board, whereas Ex.A1 is the registered sale deed bearing document No.4310 dated 12.11.2008, Ex.A2 is the proceedings in

No.M.V/47-A/88/2009 dated 30.11.2010 issued by the District Registrar of

Assurances, Khammam, wherein after due verification of the land, the deficit fee of Rs.4,85,350/- has been directed to be collected from the plaintiff under Section 48 of Indian Stamp Act, 1899, within 15 days from 30.11.2020. Ex.A3 is the agreement of sale in respect of the suit schedule property. Therefore, the oral and documentary evidence let in by the defendants is contradicting and varying from that of the suit schedule property.

67. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for perpetual injunction as the plaintiffs proved title and it is

Page No. 59 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

settled law possession follows title. Issues No.1 to 4 are answered accordingly.

68. Heard both sides. Both sides also filed written arguments.

ISSUE No.1 TO 3 IN O.S.No.51 of 2016:

69.Issue Nos.1 to 3 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

70. In order to prove the suit claim, plaintiff has examined herself as P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A4 on her behalf, among them Ex.A1 is the certified copy of registered agreement of sale-cum-G.P.A. bearing document No.5657/2001 dated 09.10.2011, Ex.A2 is the original registered sale deed bearing document

No.7635 dated 23.09.2004 and Ex.A3 is the certified copy of agreement of sale dated 13.10.2006 executed by defendant.

71. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she admitted that she did not issue any notice till filing of the suit demanding the defendant to execute the registered sale deed in respect of the suit schedule property in pursuance of the oral agreement of sale dated 24.09.2004.

Page No. 60 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

72. P.Ws.2 and 3 are alleged to be one of the mediators to the sale transaction between the plaintiff and defendant.

73. As seen from Exs.A1 to A4, the land within the boundaries specified in the agreement of sale and the registered sale deed differs with each other.

74. Coming to the evidence on behalf of the defendant, he himself examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written statmenet. During his further chief examination, he got marked Exs.B1 and B2 on his behalf, among them, Ex.B1 is the certified copy of agreement of sale dated 13.02.2008 between Mylavarpu Kondal Rao and the defendant for a total consideration of Rs.1,12,50,000/-. Ex.B2 is the copy of plaint in

O.S.No.26/2012 on the file of this Hon’ble Court, wherein Mylavarapu

Kondal Rao filed the suit for specific performance of contract and after his demise, his legal representatives are prosecuting the case. But as per

Ex.A3, the ale consideration was Rs.12,60,000/-. As seen from both

Ex.A3 and Ex.B1, there is lot of difference in the sale consideration.

Vallikumari is no other than wife of Kummarakuntla Srinivasa Rao. Mother of Kummarakuntla Srinivasa Rao namely Padmavathi, filed suit in

O.S.No.50/2016 basing on the alleged registered sale deed bearing

Page No. 61 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

document No.4310, dated 12.11.2008 executed in favour of

K.Padmavathi by the defendant herein, whereas the agreement of sale

dated 24.09.2004 alleged to had been executed by defendant herein.

75. It is not out of place to mention here that plaintiffs in

O.S.No.26/2012, O.S.No.49/2016, O.S.No.50/2016 and this suit are

related and residing together, as admitted by them. Even assuming for a while, when the mother-in-law K.Padmavathi had filed the suit in

O.S.No.50/2016 basing on the alleged registered sale deed executed in

her favour by this defendant way back in the year, 2008 itself, this plaintiff being daughter-in-law to K.Padmavathi, who is alleging that this defendant had executed agreement of sale way back in the year 2004 itself i.e., 24.09.2004 i.e., even prior to the transaction between her mother-in-law, K.Padmavathi and this defendant herein was concluded by 12.11.2008 itself and the plaintiff keeping silent for all these days without issuing any legal notice to the defendant till filing of the suit for more than seven years, when herself, K.Padmavathi, K.Srinivasa Rao and other family members are residing together appears to be dubitable. Further, the plaintiff is relying on oral contract 24.09.2004 and the evidence adduced on behalf of the plaintiff basing on the alleged oral contract appears to be vague and baseless claim. It is well established principles

Page No. 62 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of law that the suit for specific performance of contract on oral contract is not maintainable unless and until it is proved because heavy burden lies on the plaintiffs that too without any legal notice for more than 7 years, when the other transactions were alleged to be concluded in the name of her other family members. More-over, the plaintiff has failed to show her readiness and willingness to perform her part of contract in pursuance of the so-called oral contract. The assertion made by the plaintiff that

Exs.A1 to A3 handed over by her mother-in-law and hence they entered into oral contract in respect of the suit schedule property appears to be dubitable and not believable.

76. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5 and the evidence of D.W.1 coupled with

Exs.B1 and B2, it is crystal clear that plaintiff failed to prove the suit claim based on oral agreement and hence she is not entitled for specific performance of contract. Issues No.1 to 4 are answered accordingly.

ISSUE No.5 in O.S.No.26 of 2012:

77. In view of my discussion on issues No.1 to 4 and additional issue, the suit of the plaintiffs is decreed partly to the extent of refund of earnest money and the rest of the suit claim is liable to be dismissed.

Page No. 63 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ISSUE No.5 O.S.No. 49 OF 2016:

78. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is decreed as prayed for.

ISSUE No.5 in O.S.No.50 of 2016:

79. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be decreed as prayed for granting perpetual injunction.

ISSUE No.5 in O.S.No.51 of 2012:

80. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be dismissed, but without costs.

RESULT IN O.S.No.26/2012:

In the result, the suit is decreed partly with costs. The defendant

No.1 is directed to pay an amount of Rs.97,12,500/- to the plaintiff with subsequent interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of decree, till the date of realization on Rs.97,12,500/-. The rest of the suit claim is dismissed, but in the circumstances without costs.

RESULT IN O.S.No.49/2016:

In the result, the suit is decreed with costs. The defendant No.1 is hereby directed to execute registered sale deed within two months from the

Page No. 64 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

date of this judgment and in case defendant No.1 failed to execute the registered sale deed, the plaintiff is at liberty to seek relief through process of court. Consequently, the plaintiff is granted perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.50/2016:

In the result, the suit is decreed with costs granting perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.51/2016:

In the result, the suit is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, this the 18th day of November,

2022.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

-APPENDIX OF EVIDENCE-

Witnesses examined for Plaintiffs in O.S.No.26 of 2012:

P.W.1 : M.Kondal Rao. P.W.2 : M.Sravan Kumar

Page No. 65 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : P.Subhadra (Eschewed) D.W.3 : B.Chinthaiah D.W.4 : S.Venkateswarlu

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 13.02.2008. Ex.A2 : Office copy of legal notice dated 10.01.2011. Ex.A3 : Reply notice dated 28.01.2011. Ex.A4 : Reply notice dated 17.02.2011. Ex.A5 : Office copy of rejoinder notice dated 17.02.2011. Ex.A6 : Photograph with C.D. dated 30.11.2018 showing the name board styled as Sri Venkateswara Marbles. Ex.A7 : Copy of registration details issued by Commercial Taxes Department.

For Defendants:

Ex.B1 : Certified copy of plaint along with summons in O.S.No.200/2011 on the file of Senior Civil Judge’s Court, Khammam. Ex.B2 : Certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s court, Khammam.

Ex.B3 : Certified copy of plaint in O.S.No.223/2011 on the file of the

Senior Civil Judge’s Court, Khammam.

Ex.B4 : Certified copy of written statement filed by Seelam Venkateswarlu. Ex.B5 : Certified copy of the registered sale deed bearing document No.7635/2011 dated 23.09.2004. Ex.B6 : Photograph depicting the shop. Ex.B7 : True copy of agreement of sale dated 02.04.2007 Ex.B8 : Certified copy of registered sale deed bearing document No.4310/2012 (P.323/2008) executed by defendant No.1 Ex.B9 : Certified copy of agreement of sale dated 13.10.2006 executed by defendant No.1.

Page No. 66 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Witnesses examined for Plaintiffs in O.S.No.49 of 2016:

P.W.1 : P.Yadagiri Laxminarasimha Rao. P.W.2 : P.Subhadra P.W.3 : B.Chinthaiah

C.W.1 : Seelam Venkateswarlu

For Defendants:

D.W.1 : K.Padmavathi D.W.2 : K.Srinivasa Rao

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 02.04.2007 executed by defendant No.1 Ex.A2 : Office copy of legal notice dated 20.09.2011. Ex.A3 : Postal acknowledgment Ex.A4 : Served copy of plaint in O.S.No.50/2016 Ex.A5 : Certified copy of order in I.A.No.843/2011 in O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam Ex.A6 : Certified copy of plaint in O.S.No.51/2016. Ex.A7 : Certified copy of registered sale deed bearing document No.7635/2004 dated 30.09.2004. Ex.A8 : Certified copy of sale deed bearing document No.P-323/2008

dated 12.11.2008.

For Defendants:

Ex.B1 : Photograph depicting the shop Ex.B2 : Certified copy of registration details issued by Commercial Taxes Department. Ex.B3 : Certified copy of registered sale deed bearing document dated 12.11.2008. Ex.B4 : Certified copy of agreement of sale dated 13.10.2006 Ex.B5 : Certified copy of proceedings of the D.R.A., Khammam dated 30.11.2010. Ex.B6 : Letter dated 11.01.2019 addressed by the Sales Tax Office, Khammam

Page No. 67 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B7 : VAT certificate dated 19.08.2011.

Witnesses examined for Plaintiffs in O.S.No.50 of 2016:

P.W.1 : K.Padmavathi. P.W.2 : K.Srinivasa Rao P.W.3 : Mahender Singh Bharadwaj

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : B.Chinthaiah

Exhibits Marked for

Plaintiffs:

Ex.A1 :Certified copy of registered sale deed bearing documetn No.4310/2012, dated 12.11.2008. Ex.A2 :Proceedings issued by the District Registrar, Khammam vide MV/47/A/88/2009 Ex.A3 : Original agreement of sale dated 13.10.2006.

For Defendants:

Ex.B1 : Certified copy of sale agreement dated 02.04.2007 Ex.B2 : Endorsement on the reverse of first page of Ex.B1 dated 20.07.2007. Ex.B3 : Two photographs with C.D. Ex.B4 : Receipt issued by Photographer. Ex.B5 : Three positive photographs

Witnesses examined for Plaintiffs in O.S.No.51 of 2016:

P.W.1 : K.Valli Kumari. P.W.2 : Mahendrasingh Bharadwaj P.W.3 : M.Laxmikantha Rao

For Defendants:

D.W.1 : S.Venkateswarlu

Page No. 68 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Exhibits Marked for

Plaintiffs:

Ex.A1 : Original registered agreement of sale-cum-G.P.A. vide document No.5657/2001, dated 09.10.2001. Ex.A2 : Original registered sale deed bearing document No.7635/2004,

dated 23.09.2004.

Ex.A3 : Certified copy of agreement of sale dated 13.10.2006. Ex.A4 : Certified copy of registered sale deed bearing document No.4310/2008, dated 12.11.2008.

For Defendants:

Ex.B1 : Certified copy of unregistered agrement of sale deed dated 13.02.2008. Ex.B2 : Certified copy of neat copy of plaint in O.S.No.26/2012.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

Compared by:

Page No. 1 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

KHAMMAM

Friday, this the 18th day of November, 2022.

Present: Dr.T.Srinivasa Rao,

Principal District Judge,

Khammam, FAC, II Additional District Judge, Khammam.

O.S.No.26 of 2012, O.S.No.49 of 2016, O.S.No.50 of 2016 and

O.S.No. 51 of 2016

O.S.No.26 of 2012:

Between:

1.Mylavarapu Kondal Rao (Died), L.Rs, 2.Mylavarapu Annapurnamma, W/o late Pitchaiah, Aged 80 years, Occu:House hold, R/o Sriram Hills, Khammam City and District. 3.Mylavarapu Aruna, W/o late Kondal Rao, Aged 48 years, Occu:House hold, R/o Sriram Hills, Khammam. 4.Mylavarapu Sravan Kumar, S/o late Kondal Rao, Aged 28 years, Occu:Business, R/o Sriram Hills, Khammam City. 5.Mylavarapu Uday Kumar, S/o late Kondal Rao, Aged 24 years, Occu:Business, R/o Sriram Hills, Khammam City. 6.Kothuri Amulya, D/o late Kondal Rao, Aged 25 years, Occu:House hold, R/o Sriram Hills, Khammam City.

(Plaintiffs No.2 to 6 were added as per orders in I.A.No.919/2017 dated 17.11.2017)

…..Plaintiffs in O.S.No.26/2012.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Podila Subhadra (Died), L.Rs.,

Page No. 2 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 5.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 6.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 7.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 8.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 9.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, (Defendant No.3 is added as per orders in I.A.No.189/2014 dated 03.06.2015) (Defendant Nos.4 to 9 as L.Rs. of defendant No.3 are added as per orders in I.A.No.3/2021, dated 23.11.2021)

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…..Defendants.

O.S.No. 49 of 2016:

Between:

1.Podila Subhadra (Died), L.Rs., 2.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 3.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 4.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 5.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 6.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 7.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture,

Page No. 3 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…...Plaintiffs in O.S.No.49 of 2016.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Kummarikuntla Vallikumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Defendants in O.S.No.49 of 2016.

O.S.No.50 of 2016:

Between:

Kummarikuntla Padmavathi, W/o Kumaraswamy, Aged 65 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Plaintiff in O.S.No.50 of 2016.

And

1.Podila Yadagiri Narasimha Rao, S/o Bikshamaiah, Aged 50 years, Occu:Railway Police Constable, R/o Tekulapalli village, Khammam Urban Mandal, Khammam District. 2.Podila Papa Rao, S/o Bixamaiah, Aged 40 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 3.Podila Muralikrishna, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 4.Podila Srinivasa Rao, S/o Bixamaiah, Aged 32 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 5.Podila Linga Raju, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/ o Nagaram, 2nd Line, Srinagar Colony, Khammam Town. 6.Podila Sasi Kumar, S/o Bixamaiah, Aged 30 years, Occu:Agriculture, R/ o Srinagar Colony, 1st Line, KhammamTown. 7.Bandi Sekhar, S/o late Butchaiah, Aged 30 years, occu:Real Estate Agent, R/o Near Anjaneyaswamy Temple, Tekulapalli, Khammam Urban Mandal, Khammam District. ….Defendants in O.S.No.50/2016.

Page No. 4 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.51 of 2016:

Between:

Kummarakuntla Valli Kumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam Town and District. ….Plaintiff in O.S.No.51/2016.

And

Seelam Venkateswarlu, S/o Narsaiah, Aged 61 years, Occu:Agriculture, R/o H.No.4-4-121, Guttala Bazar, Khammam Town and District. ….Defendant in O.S.No.51/2016.

These suits are coming before me for final hearing on 01.11.2022 in the presence of Sri K.P.Satyanarayana Rao, Advocate for Plaintiffs in

O.S.No.26/2012, Sri Mittapalli Srinivasa Rao, Advocate for Defendant

No.1, Defendant No.2 remained exparte and that of Sri B.Kalyan Rao, Advocate for Defendant No.3 in O.S.No.26/2012; Sri B.Kalyan Rao, Advocate for plaintiffs in O.S.No.49/2016, Defendant No.1 remained exparte and that of Sri V.N.Hanumantha Rao, Advocate for Defendant Nos.2 and 3 in O.S.No.49/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.50/2016, Sri B.Kalyan Rao, Advocate for Defendant Nos.1 to 6 and Defendant No.7 remained exparte in O.S.No.50/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.51/2016 and that ofSri Mittapalli Srinivasa Rao, Advocate forDefendant in

O.S.No.51/2016; upon perusing the material papers on record; upon

hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:

COMMON JUDGMENT

Suit in O.S.No.26/2012 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of the agreement of sale dated 13.02.2018 directing the defendant No.1 to execute registered sale deed in respect of the suit schedule property by

Page No. 5 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

receiving balance sale consideration; to declare the registered sale deed bearing document No.P323/2008 dated 12.11.2008 executed by 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff; to execute registered sale deed in respect of the suit schedule property through process of court, in case of defendant No.1 fails to execute the registered sale deed in favour of the plaintiffs and for awarding costs of the suit.

2. Suit in O.S.No.49/2016 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of agreement of sale dated 2.4.2007 in respect of the suit schedule property directing the defendants to execute valid registered sale deed in favour of the plaintiffs, to grant perpetual injunction, restraining the defendant

Nos.1 to 3, their men and any other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for awarding costs of the suit.

3. Suit in O.S.No.50 of 2016 is filed by the plaintiff against the defendants seeking perpetual injunction, restraining the defendants, their men, agents, servants and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for awarding costs of the suit.

Page No. 6 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4. O.S.No.51/2016 is a suit filed by the plaintiff seeking specific performance of contract against the defendant in pursuance of the oral agreement of contract dated 24.09.2004 directing the defendant to execute valid registered sale deed in respect of the suit schedule property, in case of failure of defendant, to execute the registered sale deed through process of law by the court in respect of the suit schedule property and for awarding costs of the suit.

5. The averments of the plaint in O.S.No.26 of 2012, in brief; are that:

i) Defendant No.1 has offered to sell the suit schedule property i.e., agricultural land measuring to an extent of Ac.1.12 ½ gts in

Sy.Nos.208/A, 208/I and 208/O of Khanapuram Haveli and the plaintiff accepted to purchase the same for a total sale consideration of

Rs.1,12,50,000/- in lumpsum. Accordingly, defendant No.1 had executed an agreement of sale dated 13.02.2008 in favour of the plaintiff for sale of said land and on the same day, the defendant had received an amount of Rs.28,12,500/- towards advance sale consideration and the said agreement of sale was duly attested. Thereafter, the plaintiff has paid

Rs.5,00,000/- on 15.04.2008, Rs.10,00,000/- on 8.5.2008 and

Rs.5,00,000/- on 2.6.2008, Rs.8,00,000/- on 28.7.2008, Rs.5,00,000/- on

Page No. 7 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

27.9.2008, Rs.9,00,000/- on 11.10.2008, Rs.10,00,000/- on 6.11.2008,

Rs.7,00,000/- on 11.11.2008 and Rs.10,00,000/- on 18.12.2008 to the 1st defendant towards balance sale consideration. Thus, in all the plaintiff has paid total amount of Rs.97,12,500/- by 18.12.2008 to the defendant

No.1 under the said agreement of sale and all the payments made by plaintiff were acknowledged by the defendant No.1 on the reverse of the said agreement of sale.

ii) The 1st defendant did not come forward to execute registered sale deed by receiving balance sale consideration, in spite of several demands by plaintiff and therefore the plaintiff got issued legal notice on 10.1.2011 demanding the 1st defendant to execute registered sale deed by receiving balance sale consideration and having acknowledged the same, the 1st defendant got issued reply notice on 28.01.2011 admitting the fact of execution of said agreement of sale and receipt of Rs.97,12,500/-. But surprisingly and malafidely the 1st defendant had taken a plea that the land measuring Ac.1.00 gts covered by the said agreement of sale dated 13.02.2008 was conveyed in favour of Smt.Kummarikuntla Padmavathi, mother-in-law of the plaintiff, alleging that he has done so, at the request of brother-in-law of the plaintiff and further alleged that plaintiff has no capacity to pay remaining sale

Page No. 8 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration, which is absolutely false and baseless. Therefore, the plaintiff got issued reply notice dated 17.02.2011 to the reply notice dated 28.1.2011 got issued by 1st defendant, denying the said allegations.

iii) There is no truth in the plea by 1st defendant that the said registered sale deed was executed in favour of Kummarikuntla

Padmavathi (defendant No.2) at the instance of the plaintiff’s brother-in- law and the same was false and baseless. The further allegation that plaintiff’s wife and plaintiff’s brother-in-law came to the Registrar Office and that at the request of plaintiff the said sale deed was executed in favour of defendant No.2 etc., are false and baseless. None of the persons mentioned in rejoinder notice dated 28.01.2011 in para No.5 attested the sale deed executed by 1st defendant and the entire story was created by the 1st defendant to deprive the plaintiff’s legitimate right to obtain registered sale deed in respect of the suit schedule property under the agreement of sale dated 13.02.2008.

iv) The plaintiff is no way concerned with the said transaction done in favour of 2nd defendant by 1st defendant and as such the question of plaintiff returning the original agreement of sale dated 13.02.2008 executed by 1st defendant in favour of plaintiff does not arise. The plaintiff has got capacity to pay the balance sale consideration and is ever ready

Page No. 9 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

and willing to perform his part of contract and is entitled to enforce the said agreement of sale dated 13.02.2008 against the defendant having already parted with huge amount of Rs.97,12,500/-. As such, the plaintiff is entitled to sue and the defendants are liable to be sued on the account of agreement of sale dated 13.02.2008. As there is no hope of 1st defendant coming forward to execute registered sale deed, the plaintiff is compelled to file this suit for specific performance of contract.

6. i) On the other hand, defendant No.1 in O.S.No.26/2012 filed written statement, denying the plaint averments and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation. Plaintiff did not approach the court with clean hands and he is not entitled for equitable relief of specific performance of agreement basing on the alleged agreement of sale dated 13.02.2008 to sell the suit schedule property and that defendant No.1 received

Rs.97,12,500/- by way of deferred payments, but the said amount is not entirely from plaintiff. The plaintiff made several demands to execute registered sale deed by receiving balance sale consideration is invented and that the legal notice dated 10.01.2011 got issued by plaintiff, with incorrect allegations and defendant No.1 got issued reply dated 28.01.2011 through M.Nageswar Rao, Advocate.

Page No. 10 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) It is further contended that one K.Srinivasa Rao, who is brother-in-law of plaintiff, is neighbour after three houses to defendant

No.1 and he is closely acquainted. Bargain to purchase the suit schedule land, was settled by said K.Srinivasa Rao and plaintiff, for consideration of Rs.1,12,50,000/- and agreement of sale dated 13.02.2008 was executed with stipulation to pay balance sale consideration within five months. But the amount of consideration could not be paid in time due to their financial constraints. In fact, the plaintiff alone has no financial capacity to pay such huge amount. After paying an amount of

Rs.10,00,000/- on 18.12.2008 the plaintiff and his brother in law

K.Srinivasa Rao, expressed their inability to pay balance consideration and proposed to execute registered sale deed for proportionate extent of land for total amount of Rs.97,12,500/- paid to defendant No.1 till 18.12.2008. Accordingly, a registered sale deed No.1323/2008 dated 12.11.2008 was got executed in favour of Smt.Kummarikuntla

Padmavathi for an extent of Ac.1.00 gts. Said Kummarikuntla

Padmavathi is none other than the mother-in-law of plaintiff and mother of K.Srinivasa Rao. It may not be out of place to mention that defendant

No.1 can register the property in parts, in plots or en-block, in the name of plaintiff or in the name of other persons at the option of plaintiff, as per

Page No. 11 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

terms of the agreement of sale dated 13.02.2008. Out of good faith and bonafide belief, defendant No.1 executed said registered sale deed in the name of Kummarikuntla Padmavathi. Above registration was kept pending by registering authorities as valuation was disputed to save stamp duty. Another agreement of sale with ante date allegedly dated 13.10.2006 was also obtained in the name of Kummarikuntla

Padmavathi, for a consideration of Rs.12,00,000/- from defendant No.1 to support their family members who were actively involved in the above affairs.

iii) There is a discrepancy in respect of availability of Ac.1.12 ½ gts of suit schedule property. An extent of Ac.0.04 gts of land was alienated by defendant No.1 to one Podila Subhadra, W/o Bikshmaiah, who are neighbouring land owners on southern side of suit schedule property through agreement of sale in the year, 2007. Plaintiff and

K.Srinivasa Rao to make use of NSP land abutting to suit schedule land on northern side, have purposefully got mentioned the boundary allegedly as land alienated by defendant No.1 to one Kummarikuntla Valli

Kumari. Said Valli Kumari is none other than wife of K.Srinivasa Rao.

The plaintiff and his brother-in-law K.Srinivasa Rao, malafidely trying to take undue advantage of agreement of sale dated 13.02.2008 retained

Page No. 12 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

by them and northern boundary allegedly mentioned as land of

Kummarikuntla Vallikumari and filed above suit and also

O.S.No.259/2011 on the file of Senior Civil Judge’s Court, Khammam

against defendant No.1 seeking specific performance of oral agreement of sale. Defendant No.1 cannot have any objections, if plaintiff is desirous to get the registered sale deed executed in his favour by cancellation of registered sale deed No.323/2008 dated 23.10.2010 executed in favour of defendant No.2, his mother-in-law. It is pertinent to mention here that said sale deed No.P323/2008 is devoid of consideration and it was executed for the consideration of Rs.97,12,500/- paid till 18.12.2008 on agreement of sale dated 13.02.2008. Considering the above, conspicuous silence on the part of plaintiff, having paid

Rs.97,12,500/- by 18.12.2008 and seeking performance of agreement of sale dated 13.02.008 after lapse of nearly three years, does not inspire any confidence. Plaintiff and said K.Srinivasa Rao in connivance with defendant No.2 and Kummarikuntla Padmavathi, intended to gain wrongfully by blackmailing tactics, under the guise of agreement of sale

dated 13.02.2008, remained with them by chance. Finally defendant

No.1 prayed to dismiss the suit with exemplary costs.

Page No. 13 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

7. i) Defendant No.3 filed written statement, denying the plaint averments and further contending that the above suit is not maintainable either in law and on facts, Plaintiff alleging to have paid huge amount of

Rs.97,12,500/- under agreement of sale dtd. 18-12-2008 and kept silent till fag end of (3) years, does not inspire confidence. Such inordinate delay precludes plaintiff for grant of relief of specific performance. This defendant is not aware of alleged agreement of sale dt.18-12 2008, executed in favour of plaintiff by defendant No.1. Plaintiff is closely related to defendant No.2, who is none other than her son-in-law. One

Kummarikuntla Padmavathi is daughter-in-law of defendant No.2.

Defendant No.1 is close family friend of plaintiff, defendant No.2 and son of defendant No.2 namely Kummarikuntla Sreenu, defendant No.1 and 2 live in nearby houses. Defendant No.1 is said to own Ac.1.12 gts, of land in Sy.No.208/A, 1 & O, which was purchased through registered sale deed No.7635/2004 dated 23-06-2004. Said land of defendant No.1 is situated on northern side of land of this defendant No.3 and her husband late Podila Bikshamaiah i.e., Ac.1.04 gts, in Sy.No.206, 207 of

Khanapuram Haveli. Defendant No.3 and her husband bonafidely purchased a triangular piece of Ac.0.04 gts, of land from defendant No.1 through an agreement of sale dt.02-04-2007, for a consideration of Rs.2

Page No. 14 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

lakhs. Defendant No.3 paid Rs.50,000/- on 02-04-2007, Rs.30,000/- on 30-06-2007 and Rs.1 lakh on 20-07-2007 to defendant No.1. Defendant

No.1, he endorsed receipt of said on amounts of part of sale consideration on reverse of agreement of sale, defendant No.1 delivered possession over said Ac.0.04 gts, in favour of defendant No.3. Said

Ac.0.04 gts, of land is advantageous for defendant No.3, to get northern boundary of her land, a straight one. Subsequently, defendant No.1 suffered heart ailment and with other health problems. Defendant No.3 in good faith believed defendant No.1 in postponing execution of registered sale deed time and again, on pretext of said ill health. However defendant No.1 delivered possession of said Ac.0.04 gts, of land in

Sy.No.208 of Khanapuram Haveli, in favour of this defendant No.3, on 20-07-2007. Defendant No.3 got laid stone planks around boundary for their Ac.1.08 gts, land including Ac.0.04 gts, of land purchased from defendant No.1. Defendant No.3 in her own right has let out said land of

Ac.1.08 gts, in the year 2010 to one Cheepu Veeraiah for marble and granite business under the name and style as M/s Venkateswara Marble and Granite.

ii) While things stood thus, at first instance, defendant No.2 herein filed a suit for perpetual injunction vide OS.No.200/2011 on the file

Page No. 15 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of court of learned Senior Civil Judge, Khammam, against sons (6 No.s) of this defendant No.3 and one Bandi Sekhar. It was alleged that defendant No.2 herein is owner of Ac.1.00 of land in Sy.No.208/1, O, which was contended to be purchased from defendant No.1 herein through a registered sale deed (pending) No.P.323/2008 dated 18-12- 2008. Said Ac.1.00 gts of land of defendant No.2, claimed on north of land of husband of this defendant No.3, namely late Podila Bikshamaiah.

Defendant No.2 contended that, sons of this defendant No.3 tried to interfere with her Ac.1.00 gts of land. Defendants No.1 and 2 in connivance premeditatedly got referred an agreement of sale dt.13.10.2006 in recitals of said sale deed and mentioned incorrect boundary on north. Defendant No.2 filed a separate petition in

IA.No.843/2011 in OS.No.200/2011 for interim injunction and while

granting interim injunction learned Senior Civil Judge, Khammam, held that, respondents therein, who are sons of defendant No.3 herein can seek necessary legal remedy in the event of defendant No.2 herein, tries to interfere with land of defendant No.3 herein.

iii) It is also transpired that, another suit in OS.No.259/2011 on the file of Court of Senior Civil Judge, Khammam, was conclusively filed by one Kummarikuntla Valli Kumari, who is daughter-in-law of defendant

Page No. 16 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.2 herein, against defendant No.2 herein for specific performance to execute registered sale deed for Ac.0.12 gts of land in Sy.No.208/A, alleging oral agreement of sale purportedly on 24-09-2004. Said

OS.No.259/2011 was filed to countenance OS.No.200/2011. Plaintiff

herein is the person behind in filing above OS.No.200/2011 and

OS.No.259/2011. Though not admitting, defendant No.3 or any of her

family members do not have knowledge about alleged sale transactions in favour of plaintiff nor in favor of defendant No.2 and in favor of said

Kummarikuntla Valli Kumari, prior to filing of above respective suits. The extents of land in above OS.No.200/2011 and in OS.No.259/2011 are more than the extent of land physically available and own by defendant

No.1. In order to secure her interests and rights over Ac.0.04 gts, of land based on agreement of sale dt.02-04-2007, executed by defendant No.1, this defendant No.3 filed OS.No.223/2012 on the file of learned Senior

Civil Judge, Khammam, for specific performance to execute registered

sale deed, against defendants No.1 and 2 herein and Kummarikuntla

Valli Kumari, who is daughter in law of defendant No.1 and plaintiff in

OS.No.259/2011. Above circumstances manifestly explain that, plaintiff

herein, defendants No.1 and 2 are purposefully inventing litigation to deprive possession and interests of defendant No.3 over her Ac.0.04 gts.

Page No. 17 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

In furtherance of said object, above suit is filed as an afterthought based on alleged agreement of sale dt.18-12-2008. Considering the same suit relief for specific performance is frivolous and without any justification.

Plaintiff did not approach the Court with clean hands and he is not entitled for equitable relief of specific performance. More so, filing of above suit is abuse of process of court and prayed to dismiss the suit with costs.

8. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether defendant No.1 offered to sell land to an extent of Ac.1.12 ½ gts in Sy.No.208/A, 208/I and 208/O of Khanapuram Haveli to the plaintiff?

2.Whether defendant No.1 executed agreement of sale dated 13.02.2008 in favour of plaintiff by receiving Rs.28,12,500/- towards advance sale consideration? 3.Whether the plaintiff is the person behind filing of suit in

O.S.No.200 of 2011 and O.S.No.259 of 2011?

4.Whether the plaintiff is entitled to the relief as prayed for? 5.To what relief?

9. Subsequently, on the basis of amendment made to the plaint and in view of the additional evidence filed by the defendants, the following additional issue is framed on 02.03.2022.

Page No. 18 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Additional Issue:

“Whether the plaintiff is entitled for return of earnest money advance amount as prayed for?

10. At the time of trial, P.Ws.1 and 2 were examined and Exs.A1 to A7 are marked on behalf of plaintiff. On behalf of the defendants,

D.Ws.1 to 4 were examined and Exs.B1 to B9 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

11. The averments of the plaint in O.S.No.49 of 2016, in brief; are that:

i) That plaintiff and her husband late Bikshmaiah own land in

Sy.No.206 & 207 of Khanaapuram Haveli, Khammam (U) (M) & District of 110 ft. width By-pass road situated to south of said land of plaintiff and her husband. Land of defendant No.1, in Sy.No.208 is situated on north abutting to lands of plaintiff and her husband. An extent of Ac 0.04 gts, of triangular piece of land of defendant No.1, was purchased by plaintiff to set even dimensions of their previously existing land in Sy.No.206 & 207.

Bargain was settled for a consideration of Rs.2 lakhs; plaintiff paid

Rs.50,000/- to defendant as advance, an agreement of sale dt.02.04.2007 was executed by defendant No.1. Subsequently, plaintiff paid Rs.50,000/- on 30-06-2007 and Rs.1,00,000/- on 20-07-2007 to

Page No. 19 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

defendant towards part payment of consideration. Defendant acknowledged receipts of said part payments on reverse of agreement of sale. Further, on 20-07-2007 defendant No.1 delivered possession of said

Ac.0.04 gts, of land in part performance of agreement of sale and endorsed to the said effect on reverse of agreement of sale. Since then plaintiff has been in possession of Ac.0.04 gts, alienated by defendant, included in their land in Sy.No.206 & 207, constituting a compact block of

Ac.1.08 gts.

ii) Original agreement of sale dt.02-04-2007 executed by defendant No.1 in favour of plaintiff was filed in OS.No.200/2011 on the file of this Court. Subsequently defendant No.1 suffered heart ailment and also with other health problems. Plaintiff believed defendant in postponing execution of registered sale deed time and again, on the pretext of said ill health. Defendant made plaintiff to believe that, he has Ac.1.12 gts, of land to the north of land of plaintiff and her husband (in Sy.No.206 &207) at the time of entering in to agreement of sale dt.02-04-2007. However, plaintiff has been in possession of said Ac.0.04 gts, of land in Sy.No.208 of Khanapuram Haveli, which is suit schedule property. Rough sketch of suit schedule property is submitted for better appraisal. That, husband of plaintiff, died about 12 years back. Plaintiff and her sons have leased

Page No. 20 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

their land of Ac.1.08 gts, for past about more than one year, to one

Cheepu Veeresham, who is running marble and granite business in the name and style as M/s Venkateswara Marble & Granites. Along length of boundary of Ac.1.08 gts, plaintiff erected stone planks signifying their ownership and physical possession over the property, which include

Ac.0.04 gts, of suit schedule property.

iii) While things stood thus, defendant No.2 filed

OS.No.200/2011 on the file of this Court against sons of plaintiff for

injunction alleged to have purchased one acre of land from defendant

No.1 in Sy.No.208/E and 208/O and defendant No.2 and her sons tried to encroach in to part of Ac.0.04 gts, of land purchased by plaintiff from defendant No.1 i.e., suit schedule property. Defendant No.2 contended that, suit schedule property is part of alleged Ac.1.00 of land purchased sons, for perpetual injunction, alleging to by her from defendant No.1 through registered sale document No.P/323/2008 dt.12-11 2008.

Defendant No.2 filed a separate petition in IA.No.843/2011 seeking interim injunction in respect of suit schedule property herein. Further, the said injunction petition which was allowed by this Court on 22-07-2011, with a finding that, respondent therein, who is plaintiff herein to seek necessary legal remedy in the event petitioner therein defendant No.2

Page No. 21 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

herein, tries to interfere with land of plaintiff herein. Defendants No.1 and 2 in connivance have fraudulently brought up an agreement of sale with ante dated 13-10-2006, to defeat interests of plaintiff over suit schedule

Ac0.04 gts, of land purchased by her through agreement of sale dt.02-04 2007, Northern boundary for alleged Ac.1.00 of land related to agreement of sale dt.13 20-06 of defendant No.2 and sale document No.1211/2008 was motivatedly and vaguely mentioned as "land of defendant No.3".

iv) Defendant No.3 is none other than daughter in law of defendant No.2. That it is also transpired that, defendants No.1 and 2 collusively got filed another suit, OS.No.259/2011 on the file of this Court, by defendant No.3 against defendant No.1 for specific performance to execute registered sale deed for Ac.0.12 gts, of land alleging oral agreement of sale dt.24-09-2004 to countenance defence of plaintiff herein in IA.No.843/2011 in OS.No.200/2011. It took time to obtain certified copy of plaint in OS.No.259/2011 with permission. Above circumstances emulate that, defendants No.1 to 3 are purposefully inventing litigation to deprive possession and interests of plaintiff over suit schedule land of Ac.0.04 gts, under the guise of incorrect descriptions of property in their documents. Further it is to be ascertained, whether

Ac.1.12 gts of land available for defendant No.1 even after alienating

Page No. 22 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ac.0.04 of land in favour of plaintiff. That, plaintiff took legal notice dt.20- 09-2011 demanding defendant No.1 to execute registered sale deed in respect of suit schedule property. Defendant No.1 acknowledged receipt of legal notice on 28-09-2011 but failed to comply with the same. In the said circumstances, plaintiff cannot get a registered sale deed executed by defendant No.1 and can secure her possession in respect of suit schedule property, without legal course.

12. Defendant No.1 remained exparte.

13.Defendants No.2 and 3 filed common written statement, denying the material allegations made in the plaint and further contending that defendant No.2 in this suit filed 0.S.No.200/2012 on the file of this court against Podila Yadagiri Narasimha Rao, Podila Papa Rao, Podila

Muralikrishna, Podila Srinivasa Rao. Podila Linga Kaju sixamaiah, Podila

Sasi Kumar and one Bandi Sekhar for perpetual injunction, when they tried to encroach into the land in suit schedule property in

O.S.No.200/2011 and they falsely pleaded that defendant No.1 in this suit

executed an agreement of sale in favour of their mother for an extent of

Ac.0.04 gts of land in Sy.No.208/A, I, O. and filed the alleged agreement of sale in the said suit O.S.No.200/2011. That in I.A.No.843/2011 in

Page No. 23 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.200/2011 after hearing both sides, this court passed interim

injunction in favour of defendant No.2 in this suit, who is the plaintiff in

O.S.No.200/2011.

14. That having taken a false plea in O.S.No.200/2011, now the defendants 1 to 6 got this suit filed by their mother Smt.P.Subhadra, who does not know anything about the false pleas taken by her sons. The so- called agreement of sale dated 2.4.2007 is brought into existence in collusion with the defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. The defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. Defendant No.1 with hostile attitude towards defendant Nos.2 and 3 in this suit colluded with the plaintiff and her sons making a false pleas that he had sold an extent of

Ac.0.04 gts of land. The boundaries shown in the suit schedule property in their suit are not existent and there are no such boundaries on the spot and the defendant No.1 has no land with such boundaries as described by him or the plaintiff. The entire effort of the plaintiff and her sons is to grab Ac.0.40 gts of land from the possession of this defendant No.2 out of the suit schedule property in O.S.No.200/2011 on the file of this court.

The plaintiff is not entitled to any relief much less injunction. Defendant

Page No. 24 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.1 having sold his entire land in favour of these defendants is left with no land, as such, he cannot execute any agreement of sale is a false and baseless document. The plaintiff has approached the court with unclean hands and therefore she is not entitled to the suit claim. The plaintiff has no cause of action to file the suit and the suit is barred by limitation.

Finally, the defendants 2 and 3 prayed to dismiss the suit.

15. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the agreement of sale is true and valid? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree? 4.Whether the plaintiff is entitled for injunction? 5.To what relief?

16. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A8 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

17. The averments of the plaint in O.S.No.50/2016, in brief are that:

Page No. 25 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

i) The plaintiff is the owner and possessor of agricultural wet land measuring to an extent of Ac.1.00 gts i.e., Ac.0.20 gts in Sy.No.208/1 and Ac.0.20 gts in Sy.No.208/O, in single compact block situated at

Khanapuram Haveli, Khammam Urban Mandal, Khammam District, which is the suit schedule property. The plaintiff purchased the suit schedule property from erstwhile owner Seelam Venkateswarlu for the suit most respectfully for valid consideration through registered sale deed dated 12.11.2008 and registered on 18.12.2008 at the Joint Sub-Registrar

Office, Khammam. The Joint Sub-Registrar, Khammam has given document vide pending Registration No.323/2008, as the plaintiff disputed the valuation made by Joint Sub-Registrar Khammam.

Considering the dispute raised by the plaintiff, the District Registrar,

Khammam agreed to decrease the value of said land purchased by plaintiff i.e., suit schedule property by 20% and the plaintiff had paid the same and the proceedings were issued by the Joint Sub-Registrar, accepting the document for Registration and it was duly Registered and according to the Joint Sub-Registrar, Khammam, the Registered document will be returned to the plaintiff in due course after the approval is given by the competent authority and the proceedings issued by the

District Registrar, Khammam.

Page No. 26 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) That the plaintiff applied for Certified copy of the said pending Registered document for filing the same in the suit and accordingly Joint Sub-Registrar, Khammam has issued Certified copy of sale deed through which the plaintiff has purchased the suit schedule property. The Plaintiff undertakes to file the original Registered Sale deed as and when it is made available to her by Joint Subs Registrar,

Khammam at the earliest possible time. The plaintiff having purchased the suit schedule property is in peaceful possession and enjoyment of the same and the land is an agricultural land. But the same is kept fallow in view of the urbanization of the area presently, as many marble shops have been set up and now it is some what difficult to cultivate land. The defendants claiming to be neighbouring land owners, are trying to encroach upon the said land of the plaintiff without any sort of right. The plaintiff with a view to protect her property is erecting a barbed wire fencing around the suit schedule property in the month of October 2010 and the defendants made an attempt to interfere with the activities of erection of barbed wire around the suit schedule property. Since then repeatedly either the defendants or their men are making attempts to pull down the barbed wire fencing pillars erected by the plaintiff and the plaintiff could resist their illegal acts. The defendants are in a view to

Page No. 27 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

chase away the plaintiff from suit schedule property with malafide intention of knocking away the suit schedule property for a throw away price as the plaintiff is a helpless woman.

iii) The purchase of suit schedule property by the plaintiff has become an eye-sore to the defendants and some of the defendants are real estate agents who have caste their evil eye on suit schedule property. The plaintiff approached the concerned police for protection, but unfortunately no help was given by the police, citing the reason that it is a civil dispute, which in fact the attempt to tress pass into the suit schedule property by defendant, is also an offence, not withstanding the fact that it is a civil dispute. To protect her property from illegal attempts by the defendants, the plaintiff has no other way except to file the suit for perpetual injunction before this Court.

18. On the other hand, Defendant No.7 remained exparte.

19.Defendant Nos.1 to 6 filed common written statement, denying the material allegations of the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation who did not approach the court with clean hands and she is not entitled for equitable relief of injunction. Defendant No.7 is no way concerned to defendants No.1 to 6, plaintiff for reasons better known

Page No. 28 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

arrayed as defendant No.7. Admittedly southern boundary for suit schedule property covered under registered sale deed P.No.323/2008 dt.12-11-08, is land of father of defendants No 1 to 6. Similarly in certificate dt.27-08-2004 issued by Mandal Revenue Officer, Khammam (U) (M), appended to the said sale deed southern boundary is mentioned as land of father of defendants No.1 to 6. As per the recitals of said sale deed, one Seelam Venkateswariu vendor of plaintiff, own Ac.1.12 ½ gts, în Sy.No.208/A, 208/1 & 208/0, out of which Ac. 1.00 was alienated in favour of plaintiff through said sale deed, which is allegedly described as suit schedule property. Northern boundary in Certificate issued by MRO, is mentioned as NSP main canal acquired area for an extent of Ac.1.10 gts,. While the extent is enlarged to Ac.1.12 gts, in occupancy certificate issued by Revenue Divisional Officer, dt.25-09-08. Seelam Venkateswarlu vendor of plaintiff, alienated a triangular piece of appurtenant land over an extent of Ac.0.04 gts, out of Sy.No.208/A, 208/1 & 208/0 to north of land of defendants No.1 to 6 in Sy No.206 and 207 through an agreement of sale dt.02-04-07 for a consideration of Rs.2,00,000/- in favour of Podila

Subhadra/mother of defendants No.1 to 6. Further, Seelam

Venkateswarlu vendor has delivered possession of said Ac.0.04 gts, of land under endorsement dt.20.07.2007 on the reverse of said agreement

Page No. 29 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of sale. Including said Ac.0.04 gts, father of defendants No.1 and 6 and their mother own compact block of Ac.1.08 gts, in S.No.206, 207 &208.

20. Defendant No.1 and 6 and their mother have been in absolute and uninterrupted possession of Ac.1.08 ¾ gts and the same was leased to one Cheepu Veeresh, who is running marble and granite business in the name and style as "Sri Venkateswara Marbles for past more than one year. Around the boundary, defendants Nos.1 to 6 has erected stone planks before it was leased, which signify their physical possession over

Ac.108 gts. Photographs dt.02-07-2011 closely depict the line of stone planks (12 Nos) on western boundary of land of defendants No 1 to 6.The description of suit schedule property alleging agricultural land of

Kummarikuntla Vallikumari, later NSP main canal on northern side, is erroneous and motivatedly mentioned. Defendants No.1 to 6 reliably came to know that, said Kummarikuntia Vallikumari none other than daughter in law of plaintiff. Plaintiff under the guise of such wrongly described northern boundary trying to encroach part of Ac.1.08 3/4 gts of defendants No.1 to 6, without any right or concern. Plaintiff failed to submit any rough sketch to establish her possession as per alleged northern boundary of Kummarikuntla Vallikumari and the land mark of

NSP acquired land. More-so, plaintiff instead of standing on her own legs

Page No. 30 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

alleged that, defendants No.1 to 6 admitted that, suit schedule property is situated on northern side of their land in her counter filed in interlocutory application, which is misconceived. It is pertinent to mention that, plaintiff failed to disclose extent of alleged land of Kummarikuntla Vallikumari and it's survey numbers on north and western side of suit schedule property, which is a material suppression.

21. It appears that, plaintiff in connivance with Seelam

Venkateswarlu has created agreement of sale allegedly dt.13-10-2006 and recitals in registered sale document No.P/323/2008 did 12-11-2008 allegedly referring said agreement of sale dt.13-10-06 are premeditated as a make believe affair that, sale transaction in favour of plaintiff is prior to sale transaction in favour of Smt.Podila Subhadra, mother of defendants No.1 to 6. It is incorrect to allege that, from October 2010 defendants No.1 to 6 are making attempts to interfere with possession and enjoyment of plaintiff and that, she started erecting barbed wire fencing, is baseless. It is also incorrect that, during 2" and 3 weeks of

June 2011 made an attempt to interfere with possession of plaintiff, to pull down the pillars of barbed wire fencing Photographs submitted by defendants No.1 to 6 do not show any barbed wire fencing on any comer near by land of defendants No.1 to 6. Mean-while it is transpired that,

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Kummarikuntla Vallikumari daughter in law of plaintiff collusively filed OS

No.259/2011 on the file of this Court, against Seelam Venkateswarlu, for specific performance of contract alleging oral agreement of sale, as counter blast to above contention of defendants No.1 to 6. Finally, defendants 1 to 6 prayed to dismiss the suit.

22. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the plaintiff is in peaceful possession and enjoyment over the plaint schedule property, as on the date of filing of this suit? 2.Whether the plaintiff is entitled for consequential permanent injunction? 3.To what relief?

23. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A3 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked on behalf of the defendants.

24. The averments of the plaint in O.S.No.51/2016, in brief are that:

i) That plaintiff entered into an oral agreement of contract with the defendant to purchase the suit schedule property measuring to an extent of Ac.0-12 ½ 2gts. from and out of Sy.No.208/A situated at

Khanapuram Haveli Revenue village, Khammam Urban for a total

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consideration of Rs.2,00,000/- on 24.09.2004. The defendant received the said sum towards entire sale consideration for the suit schedule property and out of good faith, the oral agreement was not reduced into writing and the said transaction took place on 24.09.2004 in the presence of mediators namely Kesa Srikanth, Mellacheruvu Laxmikantha Rao and

B.Mahinder Singh. The suit schedule property and another extent of

Ac.1.00 gts was purchased by the defendant through registered sale deed bearing document No.7635/2004 on 23.09.2004 (single compact block) and at the time of said registration, the defendant informed the husband of the plaintiff that to clear the debt incurred by him, white purchasing this suit land and another extent of Ac.1.00 gts through the said registered sale deed No.7635/2004, be needed some aspect, as such, he offered to sell the suit schedule property for Rs.2,00,000/ in the presence of above said elders.

ii) Subsequently to the oral agreement of sale dt.24-09-2004, the defendant executed an agreement of sale dt.13-10-2006 selling the remaining extent of Ac.1-00 gts in favour of Smt.Kummarakuntla

Padmavathi, the mother-in-law of plaintiff and later, he executed a registered sale deed bearing document P-323/2008, dt.12-11-2008 for the said extent of Ac.1.00 gts. The defendant is left with no land which had

Page No. 33 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

purchased through registered sale deed bearing document

No.7635/2004, dt.23-09-2004 from his vendor. That having sold the suit schedule property in favour of the plaintiff in this suit, through an oral agreement of sale and having sold the remaining extent of Ac.1-00 gts of land in favour of the mother-in-law of the plaintiff, the defendant delivered two original registered sale deeds pertaining to the suit schedule property and another extent of Ac.1-00 (which is a single com pact block) to the mother-in-law of the plaintiff. Therefore, it is established that the defendant entered into an oral agreement of sale with the plaintiff offering to sell the suit schedule property for a total consideration of Rs.2,00,000/ and also delivered possession of the suit land on the date of oral agreement of sale itself. That on the request made by the plaintiff, her mother-in-law (K.Padmavathi) handed over the two original sale deeds to the plaintiff.

iii) The defendant while executing the registered sale deed in favour of the mother-in-law of the plaintiff, admitted the fact that the suit schedule property in this suit was sold in favour of the plaintiff, which is abutting to the Ac.1-00 of land sold by the defendant in favour of mother- in-law of the plaintiff..in the registered sale deed No.P-323/2008 by mentioning the suit schedule property in this suit as the land sold in

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favour of the plaintiff in this suit. The suit schedule property in this suit is situated on the northern and part of western side of Ac.1.00 gts of land covered by registered sale deed No.P323/2008 executed in favour of

K.Padmavathi, the mother-in-law of plaintiff by the defendant. The plaintiff demanded the defendant to execute the registered sale deed in respect of the suit schedule property , but the defendant had postponed the same on one pretext or the other and there is no hope of defendant executing the registered sale deed in near future. Hence the suit for specific performance of contract basing on the oral agreement of sale dated 24.09.2004.

25. i) Defendant filed written statement, denying the material allegations made in the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation and she did not approach the court with clean hands and she is not entitled for specific performance of agreement, as alleged.

The suit is filed for specific performance of contract allegedly dated 24.09.2004 orally entered by plaintiff and defendant, to sell Ac.0.12 ½ gts, in Sy.No.208/A in the presence of Kesa Srikanth, Mellacheruvu

Lakshmikantha Rao and B.Mahinder is incorrect and denied. It is also incorrect that, defendant received Rs.2 lakhs from plaintiff towards sale

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consideration and that delivered possession of suit land in favour of plaintiff. Except vague and self serving allegations, plaintiff failed to disclose cause of action to file above suit. Further plaintiff alleging to have demanded defendant to execute registered sale deed does not arise.

One Mylavarapu Kondal Rao, is the person behind above litigation. Said

Kondal Rao was closely associated with defendant in his business and gained active confidence. Said Konidal Rao purchased land in Sy.No.208 of Khanapuram Haveli, from this defendant through an agreement of sale dt.13-02-2008 for a consideration of Rs1,12,50,000. He obtained a registered sale deed dt.12-11-2008 in favour of his mother in law one

Kummarikuntla Padmavathi and for his convenience an agreement of sale dt.13-10-2006, for Ac.1.00 gts of land in Sy.No.208.

ii) In said documents, said Kondal Rao got mentioned northern boundary as land of petitioner up to NSP main canal. Said boundary was got mentioned by Mylavarapu Kondal Rao, stating that, he can make use of land margin available between NSP canal on the basis of said description. As such, the petition schedule property is fictitious and physically no land as such exists. Said Kamarikuntla Padmavathi none other than mother in law of plaintiff. In fact extent of land of Ac.1.12 ½ gts, in schedule of property as per registered sale deed No.7635/2004

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dt.23-09-2004 not physically available within described boundaries.

Defendant delivered his original registered sale deeds (2 Nos) to

Kummarikuntla Padmavathi at the time of execution of registered document dt.12-11-2008, as she purchased major part of land of defendant. It is imaginary to allege that, defendant entered into oral agreement of sale with plaintiff and delivered possession of suit schedule land for consideration of Rs.2 lakhs. Capacity of plaintiff to pay Rs.2 lakhs is also denied.

iii) It is not out of place to mention that, plaintiff did not take any pains to cause legal notice demanding defendant to execute registered sale deed although for (7) years which is beyond any stretch of imagination. Self serving allegations in the plaint manifestly explains fraudulent claim of plaintiff. Under the guise of incorrect description of boundary mentioned in registered sale deed executed in favour of

Kummarikuntla Padmavathi, plaintiff in connivance with said Mylavarapu

Kondal Rao filed above suit malafidely to harass this defendant and to have wrongful gain and finally prayed to dismiss the suit with exemplary costs.

26. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office or trial:

Page No. 37 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

1.Whether the oral agreement of sale between the parties is true, valid and binding on the defendant? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree?

27. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A4 are marked on behalf of plaintiff. On behalf of the defendants, D.W.1 was examined and Exs.B1 and B2 were marked.

28. After conclusion of trial in all the four suits, since the subject matter of the property involved is one and the same and as per the orders in Transfer O.P.No.747/2015 dated 03.03.2016, heard the arguments on both sides in all the suits to deliver common judgment, in order to avoid conflicting opinions and judgments. In addition to the oral arguments, learned counsel for the defendant No.1 in O.S.No.26/2012 also submitted written arguments, in support of his contentions.

ISSUE No.1 TO 4 AND ADDITIONAL ISSUE IN O.S.No.26 of 2016:

29.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

30. At the outset, it is pertinent to note here that deceased plaintiff

No.1 is none other than the son-in-law of Kummarikuntla Padmavathi,

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who is the defendant No.2 herein and Valli Kumari is the daughter-in-law of defendant No.2, who filed O.S.No.51/2016. For the reasons best known, defendant No.2 has remained exparte and did not choose to contest the matter.

31.In support of the aforesaid contentions, the plaintiff himself got examined as PW.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the plaint in toto. P.W.1 in his further examination in chief, marked Exs.A1 to A4. Subsequently, he died and hence his evidence and the marking of documents cannot be looked into.

32. Subsequently, plaintiff No.4 got examined himself as P.W.2, who requested to treat the evidence affidavit for examination in chief filed by P.W.1, wherein he reiterated the contents of the plaint in toto. PW.2 in his further examination in chief marked Exs.A1 to A5 documents, among them Ex.A1 is the agreement, Ex.A2 is the payment endorsement, Ex.A3 is the office copy of legal notice dated 10.1.2011 got issued by plaintiffs,

Ex.A4 is reply notice dated 28.1.2011 and Ex.A5 is reply notice dated 17.2.2011 got issued by plaintiffs to defendant No.1. Ex.A5 is the copy of rejoinder notice dated 17.02.2011 consisting of endorsement of counsel for the defendant. Ex.A6 is the photograph along with C.D. depicting the

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name board of Sri Venkateswara Marbles, Bye-pass Road, Khammam and Ex.A7 is the copy of registration details issued by Commercial Tax

Department were marked through D.W.3. During the course of cross examination of P.W.2, he had categorically admitted that there are cordial relations between his family and the family members of defendant No.1 and that his grandmother-defendant No.2 purchased the property from defendant No.1. He has further admitted that as and when the properties are purchased by his family and family of defendant No.2, they used to inform each other about the particulars of the properties to be purchased.

The land purchased by his father and the land purchased by his maternal grandmother are one and the same. Father of P.W.2 sustained monetary loss and his grandmother acted detrimental to the interest of his father.

He has further stated that his mother along with her brothers and maternal grandmother and maternal aunts have purchased Kinnerasani

Theatre under Ex.B1 sale deed, which speaks volumes about their knowledge for purchase of any property. Though he was cross examined at length, nothing adverse is elicited to disbelieve the testimony of P.W.2.

33. To rebut the evidence of P.Ws.1 and 2, D.Ws.1 to 4 are examined on behalf of defendants. Originally P.Y.L.Narasimha Rao, who is the son of defendant No.3, who filed his evidence affidavit for

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examination in chief, wherein he reiterated the contents of his written statement in toto. But instead, Singisala Venkateswar Rao appeared in the court for cross-examination as per the orders in I.A.No.1989/2018

dated 03.12.2018, wherein it was elicited that Seelam Venkateswarlu

purchased land in Sy.No.208 to an extent of Ac.1.02 ½ gts of land under registered document, but the actual land made available is only Ac.1.10 gts. He had admitted that Kondal Rao filed the present suit stating that he purchased Ac.1.12 ½ gts from Seelam Venkateswarlu under sale agreement. Through this witness, Exs.B2 to B6 are marked. The sale transaction under Ex.A8 sale deed was executed in favour of defendant

No.2 for an extent of Ac.1.00 gts of land is the same transaction, where

D.W.4 entered into sale agreement with plaintiff No.1 under Ex.A1 and the said extent alleged to had been sold in favour of defendant No.2, which is said to be on northern side of Ac.0.04 gts of land sold to defendant No.3 under Ex.B7 which is no way concerned to the land covered by Ex.A1 in favour of plaintiff. D.W.4 further stated that to avoid stamp duty charges for a lesser price, agreement of sale under Ex.B9

dated 13.10.2006 was executed. In Ex.B4, the northern boundary

mentioned as the land of Valli Kumari for obtaining permission as there was N.S.P. left branch canal to the boundary of the land. The extent of

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land was mentioned as Ac.1-12 gts based on the document of vendor and admitted that he sold Ac.0.04 gts to defendant No.3 under Ex.B7.

Through him, Exs.B2 to B6 are marked, among them, Ex.B2 is the certified copy of plaint with summons in O.S.No.200/2011 on the file of

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.50/2016),

Ex.B3 is the certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.51/2016),

Ex.B4 is the certified copy of plaint in O.S.No.223/2012 on the file of the

Senior Civil Judge’s Court, Khammam (renumbered as O.S.No.49/2016),

Ex.B5 is the written statement filed by Seelam Venkateswarlu in

O.S.No.259/2011 and Ex.B6 is the certified copy of registered sale deed

bearing document No.7635/2004 dated 23.09.2004 executed in favour of

Seelam Venkateswarlu. It is pertinent to note here that Ex.B1 attested copy of registered sale deed bearing document No.4686/2012 dated 12.04.2012 executed by P.Asha Kumari and others.

34. Though the evidence affidavit of D.W.2 was filed, but she did not turn up for her further chief examination and cross examination stating that she fell ill. Accordingly, the evidence affidavit of D.W.2 was eschewed.

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35.D.W.3, who happened to be the business man dealing with marble and granite slabs business under the name and style of Sri

Venkateswara Marbles & Granites filed his evidence affidavit for examination in chief, wherein he deposed that D.W.2 executed lease agreement dated 20.08.2010 in his favour for five years i.e., till 31.08.2015 and the same lease was extended orally. He further deposed that he paid Rs.20,000/- towards monthly rent and presently he is paying

Rs.25,000/- per month. He has further deposed that in the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land and that he and his workers went in aid of sons of D.W.2 to resist them. Exs.A6 and A7 are elicited through this witness.

36. Defendant No.1 got examined C.W.1 in O.S.No.49/2016, wherein it was elicited that Kummarikuntla Srinivasa Rao-D.W.2 is the son of defendant No.1 and husband of defendant No.2, who used to call him as Babai and their houses are located very nearer and got good relations with his family members. It is very pertinent to note here that

C.W.1 categorically deposed that he had Ac.0.04 gts of land which is situated on southern and eastern side of his land. He further admitted that, he sold his land to the plaintiff, which is in triangle shape. On confrontation of Ex.A1, agreement of sale, admitted his signatures and

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also the contents of the agreement and so also the endorsements dated 30.06.2007 and 20.07.2007 made on the rear side of the agreement. He has further admitted that while purchasing the land, he got it measured and then it was one acre 12 and half guntas, later a canal was found in which he lost his two guntas of land and hence he own 10 and half guntas of land. He lost his two guntas of land after his sale transaction with Podila Subhadra and that government has not given any compensation for two guntas of land. He admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu Kondal Rao, plaintiff in O.S.No.26/2012 for sale consideration of Rs.1,12,00,000/- and odd and that he executed sale deed in favour of K.Padmavathi, plaintiff in

O.S.No.50/2016 on 12.11.2008. Among three members mentioned

above, initially he sold the land to P.Subhadra and executed an agreement of sale dated 13.01.2006 in favour of K.Padmavathi for getting concession in stamp duty, the registration was kept pending. He did not enter into any transaction with Valli Kumari, plaintiff in O.S.No.51/2016, who filed suit against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts.

37. Further, C.W.1 admitted that he had good terms and that he executed agreement of sale dated 13.10.2006 under Ex.B4 in favour of

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Padmavathi for getting concession in stamp duty and the registration was kept pending. He categorically admitted that he did not enter into any sale transaction with Valli Kumari (defendant No.3) and clarified the location of suit schedule property sold to Podila Subhadra on southern side of land of Ac.1.00 gts sold to Padmavathi. Having paid huge amount of

Rs.97,12,500/- by 18.12.2008, either in plaint or in the evidence of P.W.1, the same do not disclose the reason for time taken for three years period for Ex.A1 agreement of sale was about to be completed. Ex.B8 sale deed was executed in favour of defendant No.2 on 12.11.2008 i.e., a day after

Rs.7,00,000/- part sale consideration paid on 11.11.2008, one of Ex.A2 part payment endorsements on reverse side of Ex.A1 agreement of sale.

More particularly execution of Ex.A1 sale deed correspond with Ex.A2 endorsement of part payment of Rs.10,00,000/- made on 18.12.2008, establish and conclude sale transaction under Ex.A1 agreement and part payment made under Ex.A3 by execution of Ex.B8-sale deed for Ac.1.00 gts in favour of defendant No.3. Thus, defendant No.2 left suit claim in this suit in O.S.No.26/2012 uncontested, while she is seriously contesting the suit for specific performance of suit schedule to an extent of Ac.0.04 gts and in O.S.No.50/2016 for perpetual injunction for same extent of

Ac.0.04 gts of land, manifests that, in collusion with the plaintiffs and

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defendant No.2 are hand in glove with each other. Certified copy of partnership deed dated 15.02.2013 (Ex.B10) pertaining to M/s Sai

Krishna Constructions reveal that the family members of defendant No.2, plaintiffs 2, 3 and 6 are the partners in the said firm and partnership deed was attested by deceased plaintiff No.1. Ex.B10 reveal collusion among the plaintiffs and family members of defendant No.2 to harass the plaintiffs to have wrongful gain. Having regard to the facts and circumstances of the case and keeping in view the voluminous oral and documentary evidence on both sides, the agreement of sale under Ex.A1 between the parties cannot be relied and acted upon the parties.

38. Learned counsel for defendants 3 to 9 sought to rely on the following decisions in support of their respective contentions.

1.Judgment of Hon’ble Supreme Court in Civil Appeal No.147-148 of 2021 decided on 05.10.2020 between Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha.

2.Judgment of Hon’ble Supreme Court in Civil Appeal No.4703- 2022 (Arising out of SLP (C) No.19463 of 2018) decided on 12.07.2022 between U.N.Krishna Murthy (Since Deceased) Thr. Lrs. Vs. A.M.Krishna Murthy.

By relying on the above judgments, the learned counsel for the defendants 3 to 9 contended that since the plaintiffs have not shown the essential ingredients of ready and willingness, which relates to the conduct of the plaintiffs and they have not shown any bonafides by show

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of any cogent and convincing evidence to consider the relief of specific performance of contract.

39. The plea of limitation referred to was that the averment of readiness and willingness required by Section 16 (c) of the Act was part of the cause of action for the suit and therefore the suit itself was liable to be dismissed as barred by limitation. It was this plea raised by the defendant that was left open for consideration at the trial of the suit.

Subsequently, the original plaintiff Kondal Rao died and his legal representatives were impleaded as supplemental plaintiffs in the suit. The averment of readiness and willingness on the part of the plaintiffs was part of the cause of action for the suit. The contention raised by the defendants is that a recital regarding readiness and willingness of the plaintiffs to perform the essential terms of the contract is part of the cause of action for the suit in view of the provisions contained in Section 16 (c) of the Act and the prescriptions in forms 47 and 48 of Appendix A to the

C.P.C. Section 16 (c) provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms, the performance of which has been prevented or waived by

Page No. 47 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

the defendant. Forms 47 and 48 of Appendix A to the C.P.C. work out this requirement with appropriate recitals in model plaints. The defendants’ contention is that this recital goes to the root of the matter, and unless it finds a place in the plaint within the period of limitation prescribed by law, the entire suit has to fail. Admittedly, the part payments made by 13.02.2008 and the suit was presented on 16.12.2011. Added to it, the plaintiffs failed to file any documentary proof in support of their claim that they deposited the balance amount in any bank and thereby ready and willing to perform their part of contract according to the recitals of the agreement of sale. Having regard to the oral and documentary evidence adduced by both sides, there is a dispute between the parties regarding the extent of land alleged to have been sold and therefore this court is of the considered view that the relief of specific performance of contract cannot be concluded, but at the most the plaintiffs are entitled to the alternative relief for refund of the earnest money under the additional issue. Thus, the plaintiffs are not entitled to the relief of specific performance of contract and for declaration of the registered sale deed bearing document No.P323/2008 dated 12.11.2008 as null and void and not binding on the plaintiffs, except the alternative relief under additional issue directing the defendants No.1 to refund the earnest money of

Page No. 48 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Rs.97,12,500/- together with interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of suit, till the date of realization on Rs.97,12,500/-. Issues No.1 to 4 and additional issue are answered accordingly.

50. Heard both sides. Plaintiffs and defendant No.2 and 3 also filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.49 of 2016:

51.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

52. At the outset, it is pertinent to note here that except the plaintiffs in this suit, all other parties in the three remaining suits are related and the subject matter in all belongs to one and the same family.

Kummarikuntla Padmavathi-defendant No.2 herein filed O.S.No.590/2016 for perpetual injunction against plaintiffs 2 to 7 herein and one Bandi

Sekhar in respect of land to an extent of Ac.1.00 gts in Sy.No.208/I, O, alleged to have been purchased from Seelam Venkateswarlu-defendant

No.1 herein. Subsequently, Kummarikuntla Valli Kumari-defendant No.3 herein filed O.S.No.51/2016 for specific performance against Seelam

Venkateswarlu in respect of Ac.0.12 ½ gts in Sy.No.208/A alleged to have

Page No. 49 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

been purchased from Seelam Venkateswarlu-defendant No.1 herein, basing on oral agreement of sale dated 24.09.2004. Plaintiff No.1 filed the above suit for specific performance of and for perpetual injunction, against Seelam Venkateswarlu-defendant No.1, in respect of Ac.0.04 gts in triangular piece of land out of Sy.No.208 of Khanapuram Haveli, through Ex.A1 agreement of sale dated 02.04.2007 for consideration of

Rs.2,00,000/-. Plaintiff No.1 paid Rs.50,000/- on 02.04.2007, Rs.50,000/- on 30.06.2007 and Rs.1,00,000/- on 20.07.2007 to defendant No.1 towards sale consideration and possession was also delivered on 20.07.2007 and to the said effect, defendant No.1 also endorsed on the reverse of Ex.A1 agreement of sale dated 02.04.2007.

53. In order to prove the case, P.W.1 was examined on behalf of plaintiff, who fled his evidence affidavit for examination in chief, wherein he reiterated the contents of the plaint in toto. During his further examination in chief, marked Exs.A1 to A8 on his behalf. Apart from

P.W.1, plaintiffs also examined P.Ws.2 and 3, who filed their evidence affidavits for examination in chief, wherein they supported the evidence of

P.W.1 in all respects.

54. On behalf of defendants, D.W.1 filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written

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statement chief in toto. During his further examination in chief, got marked Exs.B1 to B3 to B7. Apart from the evidence of D.W.1, the defendants also examined D.W.2 on their behalf. During the cross examination of D.W.1, it was elicited that she, D.W.2 and his family members and her both sons live together and her daughter Aruna is wife of Mylavarapu Kondal Rao. She has further admitted that her son-in-law

Mylavarapu Kondal Rao had passed away about four years back i.e., from 05.03.2021. During the life time of late Kondala Rao, her daughter and her family members are residents of Gandhi Chowk, which is nearer to their residence and there are cordial relations among their family and the family members of her son-in-law M.Kondal Rao and the same relationship is continued. It is pertinent to note here that C.W.1 categorically admitted during his cross examination that he sold away the suit schedule property in favour of deceased Plaintiff and the same is evident from Ex.A1 and the part payments made on the reverse of the agreement of sale i.e., Ex.B3.

55. Apart from the above evidence, defendant No.1 is examined as C.W.1, who stated that he is the defendant No.1 in the above suit and did not file any written statement. He has further stated that he did not receive any summons and notices from the court to give evidence. He

Page No. 51 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

has further stated that he knows one Kummarikuntla Srinivasa Rao for more than 10 years. Their houses are located very nearer and that said

Srinivasa Rao used to call him as Babai. He has further stated that he own total extent of Ac.1.12 ½ gts in Sy.No.208. While purchasing the land, he got it measured and then it was Ac.1.12 ½ gts, later a canal was found in which he lost his two guntas of land after his sale transaction with Podila Subhadra. He has further deposed that government has not given any compensation for two guntas of land. He has admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu

Kondal Rao for sale consideration of Rs.1,12,00,000/- and odd. He has further admitted that he executed sale deed in favour of K.Padmavathi on 12.11.2008 for an extent of Ac.1.00 gts and the same was registered on 18.12.2008. Among three members mentioned above, initially he sold to

P.Subhadra and he executed an agreement of sale dated 13.01.2006 in favour of Padmavathi for getting concession in stamp duty and the registration was kept pending. He has further stated that he did not enter into any sale transaction with Valli Kumari. He has further admitted that

Valli Kumari has filed O.S.No.51/2016 against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts. He had denied other suggestions put to him. When this witness was

Page No. 52 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

confronted with Ex.A1 agreement of sale, he admitted his signature and also endorsements and contents on the reverse of the agreement of sale.

By the evidence of this witness, it is crystal clear that he alienated an extent of Ac.0.04 gts in favour of deceased plaintiff No.1.

56. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A9 and the evidence of defendant No.1 as C.W.1, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for specific performance of contract and consequential relief of perpetual injunction.

Issues No.1 to 4 are answered accordingly.

57. Heard both sides. Both sides filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.50 of 2016:

58.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

59. In order prove the suit claim, plaintiff has examined herself as

P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A3 on her behalf, among them Ex.A1 is the certified copy of registered sale deed bearing document No.4310/2012 dated 12.11.2008, Ex.A2 is the proceedings issued by the District Registrar, Khammam vide

Page No. 53 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.MV/47/A/88/20009 and Ex.A3 is the original agreement of sale dated 13.10.2006.

60. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she expressed ignorance about the measurements and her son verified the title documents. She stated that even by the year, 2006, she was the resident of Khammam and she is not having any relatives at Suryapet. She expressed her ignorance about purchase of stamp paper and drafting of sale agreement was purchased at Suryapet.

She denied the suggestions that Ex.A3 agreement of sale is no way relating to the sale transaction and land of Subhadra was in Sy.No.208.

She has further stated that she did not verify as to whether any document was in existence showing the measurements and boundaries of the schedule property in which she is in possession of the land and she can identify the suit schedule property. P.W.1 stated that land of Subhadra was leased out to Marble shop up to her southern boundary and categorically admitted that Subhadra leased out Ac.1.08 ¾ gts of land to

Marble shop up to the stone poles. She stated that her daughter in law purchased Ac.0.12 ½ gts of land and since the date of her purchase and even prior to that the land is vacant. She admitted that she is having

Page No. 54 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

cordial relationship with her son-in-law and there are no differences and disputes in between her family and the family members of her daughter and that her son-in-law filed a suit before the court against Seelam

Venkateswarlu stating that he also purchased the same property. She is not contesting the said suit. She expressed that she does not know whether her son in law purchased the property by paying sale consideration and that she purchased the property for Rs.12,60,000/-.

She expressed ignorance as to whether the value of the land is one crore or above. She denied the suggestion that she and her daughter-in-law only to grab the property of Subhadra got created a sale agreement with ante date, so also other suggestions.

61. P.W.2-Kummarikuntla Sreenivasa Rao stated that he is the son behind the litigation related to said four suits. He has further stated that he purchased Ac.0.12 ½ gts of land for his wife Valli Kumari in the year 2004 and the property was got measured prior to registration, but the northern boundary of the property was purchased by his wife, NSP canal was not confirmed with NSP authorities and not confirmed the boundaries of survey numbers of Bikshamaiah by appointing government surveyor. He admitted that as per the certificate given by M.R.O. in

Dis.No.B/9957/2004 the extent mentioned as Ac.1.10 gts, which is part of

Page No. 55 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.A1 sale deed. He has further admitted that he did not file any document with regard to taking of measurements of land with confirmation of his vendor. Except the registered sale deed-Ex.A1 executed by the vendor in favour of his mother, he had no documentary proof to show that his mother is in possession of the property since the date of purchase and that he did not file any document to show that his vendor handed over possession of Ac.0.12 ½ gts of land of his wife.

62. P.W.3-Mahender Singh Bharadwaj, who is one of the attestors to Ex.A1 sale deed supported the evidence of P.Ws.1 and 2. During the course of cross examination, he denied the suggestions such as he was not present at the time of transaction dated 13.10.2006 and no transaction took place between Seelam Venkateswarlu and and the plaintiff.

63. In support of the contentions of the defendants, the defendant

No.1 himself got examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the written statement in toto. D.W.1 in his further examination in chief marked Exs.B1 to

B5 documents, among them, Ex.B1 is the sale agreement dated 02.04.2007,

Ex.B2 is the endorsement on reverse of the agreement of sale, Ex.B3 are two photographs with C.D., Ex.B4 is the receipt issued by the photographer and

Page No. 56 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B5 are the three photographs.

64. During the course of cross examination, D.W.1 admitted that he did not file any document to show that he is having land to an extent of

Ac.1.04 ¾ gts in Sy.No.206 and 207. He has further admitted that some of the land in Sy.No.206 and 207 was acquired for laying bypass road, after that the remaining land belongs to him. Total extent of land in

Sy.No.206 and 207 is Ac.0.35 gts and Ac.0.38 gts and that his land is towards northern side of bypass road, which is a triangular piece of bit and that the eastern side boundary is zero. He denied the suggestion that towards northern side of his property, the property of Padmavathi is situated, which he denied. He further stated that there is land of Seelam

Venkateswarlu towards his northern side and he does not know who purchased the same. The plaintiff filed suit stating that he tried to encroach into the land of Padmavathi.

65. The defendants also examined D.W.2, who filed his affidavit for examination in chief, wherein he stated that himself and his brother-in- law Cheepu Veeraiah have been dealing with marble and granite slabs business in the name and style of Sri Venkateswara Marbles and

Granites since 2010 in Ac.1.08 ¾ gts of land belong to Podila Subhadra, on lease and that stone planks were erected on boundaries for the said

Page No. 57 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

land. An agreement of lease dated 20.08.2010 was executed by

Smt.Subhadra and her sons in their favour, for a period of five years till 31.08.2015. Later, his lease was extended orally and that initially, they paid Rs.20,000/- towards monthly rent and at present they are paying

Rs.25,000/- pr month. During the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land, then himself and their workers went in aid of sons of Smt.P.Subhadra to resist them. During the course of cross examination, Ex.A4-photograph and

Ex.A5-copy of registration details issued by the Commercial tax department. D.W.2 admitted that he mentioned the location of shop in

Sy.No.206 and 207 in Ex.A5.

66. As seen from the evidence of D.W.2, he alleged to have been carrying on his business in Sy.Nos.206 and 207 even as per Ex.A5 also, whereas the claim of the plaintiff in respect of land measuring to an extent of Ac.0.20 gts in Sy.No.208/I and Ac.0.20 gts in Sy.No.208/O, total measuring Ac.1.00 gts in single compact block. Thus, the evidence of

D.Ws.1 and 2 is contradictory to each other and they are uncertain about their land. Therefore the inconsistency in the evidence of D.Ws.1 and 2 and the survey numbers as spoken to by D.W.1 and D.W.2 differs from that of P.Ws.1 to 3. Admittedly, Exs.B1 to B5 reveal running of Sri

Page No. 58 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Venkateswara Marbles and Granites, Khammam. These Exs.B1 to B5 are the certified copies and the originals of which are filed in

O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam.

These documents do not reflect conducting of any marbles and granites business in the land being claimed by the defendants, except a nominal board depicting as Sri Venkateswara Marbles and a Mini Lorry kept underneath the board, whereas Ex.A1 is the registered sale deed bearing document No.4310 dated 12.11.2008, Ex.A2 is the proceedings in

No.M.V/47-A/88/2009 dated 30.11.2010 issued by the District Registrar of

Assurances, Khammam, wherein after due verification of the land, the deficit fee of Rs.4,85,350/- has been directed to be collected from the plaintiff under Section 48 of Indian Stamp Act, 1899, within 15 days from 30.11.2020. Ex.A3 is the agreement of sale in respect of the suit schedule property. Therefore, the oral and documentary evidence let in by the defendants is contradicting and varying from that of the suit schedule property.

67. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for perpetual injunction as the plaintiffs proved title and it is

Page No. 59 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

settled law possession follows title. Issues No.1 to 4 are answered accordingly.

68. Heard both sides. Both sides also filed written arguments.

ISSUE No.1 TO 3 IN O.S.No.51 of 2016:

69.Issue Nos.1 to 3 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

70. In order to prove the suit claim, plaintiff has examined herself as P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A4 on her behalf, among them Ex.A1 is the certified copy of registered agreement of sale-cum-G.P.A. bearing document No.5657/2001 dated 09.10.2011, Ex.A2 is the original registered sale deed bearing document

No.7635 dated 23.09.2004 and Ex.A3 is the certified copy of agreement of sale dated 13.10.2006 executed by defendant.

71. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she admitted that she did not issue any notice till filing of the suit demanding the defendant to execute the registered sale deed in respect of the suit schedule property in pursuance of the oral agreement of sale dated 24.09.2004.

Page No. 60 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

72. P.Ws.2 and 3 are alleged to be one of the mediators to the sale transaction between the plaintiff and defendant.

73. As seen from Exs.A1 to A4, the land within the boundaries specified in the agreement of sale and the registered sale deed differs with each other.

74. Coming to the evidence on behalf of the defendant, he himself examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written statmenet. During his further chief examination, he got marked Exs.B1 and B2 on his behalf, among them, Ex.B1 is the certified copy of agreement of sale dated 13.02.2008 between Mylavarpu Kondal Rao and the defendant for a total consideration of Rs.1,12,50,000/-. Ex.B2 is the copy of plaint in

O.S.No.26/2012 on the file of this Hon’ble Court, wherein Mylavarapu

Kondal Rao filed the suit for specific performance of contract and after his demise, his legal representatives are prosecuting the case. But as per

Ex.A3, the ale consideration was Rs.12,60,000/-. As seen from both

Ex.A3 and Ex.B1, there is lot of difference in the sale consideration.

Vallikumari is no other than wife of Kummarakuntla Srinivasa Rao. Mother of Kummarakuntla Srinivasa Rao namely Padmavathi, filed suit in

O.S.No.50/2016 basing on the alleged registered sale deed bearing

Page No. 61 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

document No.4310, dated 12.11.2008 executed in favour of

K.Padmavathi by the defendant herein, whereas the agreement of sale

dated 24.09.2004 alleged to had been executed by defendant herein.

75. It is not out of place to mention here that plaintiffs in

O.S.No.26/2012, O.S.No.49/2016, O.S.No.50/2016 and this suit are

related and residing together, as admitted by them. Even assuming for a while, when the mother-in-law K.Padmavathi had filed the suit in

O.S.No.50/2016 basing on the alleged registered sale deed executed in

her favour by this defendant way back in the year, 2008 itself, this plaintiff being daughter-in-law to K.Padmavathi, who is alleging that this defendant had executed agreement of sale way back in the year 2004 itself i.e., 24.09.2004 i.e., even prior to the transaction between her mother-in-law, K.Padmavathi and this defendant herein was concluded by 12.11.2008 itself and the plaintiff keeping silent for all these days without issuing any legal notice to the defendant till filing of the suit for more than seven years, when herself, K.Padmavathi, K.Srinivasa Rao and other family members are residing together appears to be dubitable. Further, the plaintiff is relying on oral contract 24.09.2004 and the evidence adduced on behalf of the plaintiff basing on the alleged oral contract appears to be vague and baseless claim. It is well established principles

Page No. 62 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of law that the suit for specific performance of contract on oral contract is not maintainable unless and until it is proved because heavy burden lies on the plaintiffs that too without any legal notice for more than 7 years, when the other transactions were alleged to be concluded in the name of her other family members. More-over, the plaintiff has failed to show her readiness and willingness to perform her part of contract in pursuance of the so-called oral contract. The assertion made by the plaintiff that

Exs.A1 to A3 handed over by her mother-in-law and hence they entered into oral contract in respect of the suit schedule property appears to be dubitable and not believable.

76. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5 and the evidence of D.W.1 coupled with

Exs.B1 and B2, it is crystal clear that plaintiff failed to prove the suit claim based on oral agreement and hence she is not entitled for specific performance of contract. Issues No.1 to 4 are answered accordingly.

ISSUE No.5 in O.S.No.26 of 2012:

77. In view of my discussion on issues No.1 to 4 and additional issue, the suit of the plaintiffs is decreed partly to the extent of refund of earnest money and the rest of the suit claim is liable to be dismissed.

Page No. 63 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ISSUE No.5 O.S.No. 49 OF 2016:

78. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is decreed as prayed for.

ISSUE No.5 in O.S.No.50 of 2016:

79. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be decreed as prayed for granting perpetual injunction.

ISSUE No.5 in O.S.No.51 of 2012:

80. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be dismissed, but without costs.

RESULT IN O.S.No.26/2012:

In the result, the suit is decreed partly with costs. The defendant

No.1 is directed to pay an amount of Rs.97,12,500/- to the plaintiff with subsequent interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of decree, till the date of realization on Rs.97,12,500/-. The rest of the suit claim is dismissed, but in the circumstances without costs.

RESULT IN O.S.No.49/2016:

In the result, the suit is decreed with costs. The defendant No.1 is hereby directed to execute registered sale deed within two months from the

Page No. 64 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

date of this judgment and in case defendant No.1 failed to execute the registered sale deed, the plaintiff is at liberty to seek relief through process of court. Consequently, the plaintiff is granted perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.50/2016:

In the result, the suit is decreed with costs granting perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.51/2016:

In the result, the suit is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, this the 18th day of November,

2022.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

-APPENDIX OF EVIDENCE-

Witnesses examined for Plaintiffs in O.S.No.26 of 2012:

P.W.1 : M.Kondal Rao. P.W.2 : M.Sravan Kumar

Page No. 65 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : P.Subhadra (Eschewed) D.W.3 : B.Chinthaiah D.W.4 : S.Venkateswarlu

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 13.02.2008. Ex.A2 : Office copy of legal notice dated 10.01.2011. Ex.A3 : Reply notice dated 28.01.2011. Ex.A4 : Reply notice dated 17.02.2011. Ex.A5 : Office copy of rejoinder notice dated 17.02.2011. Ex.A6 : Photograph with C.D. dated 30.11.2018 showing the name board styled as Sri Venkateswara Marbles. Ex.A7 : Copy of registration details issued by Commercial Taxes Department.

For Defendants:

Ex.B1 : Certified copy of plaint along with summons in O.S.No.200/2011 on the file of Senior Civil Judge’s Court, Khammam. Ex.B2 : Certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s court, Khammam.

Ex.B3 : Certified copy of plaint in O.S.No.223/2011 on the file of the

Senior Civil Judge’s Court, Khammam.

Ex.B4 : Certified copy of written statement filed by Seelam Venkateswarlu. Ex.B5 : Certified copy of the registered sale deed bearing document No.7635/2011 dated 23.09.2004. Ex.B6 : Photograph depicting the shop. Ex.B7 : True copy of agreement of sale dated 02.04.2007 Ex.B8 : Certified copy of registered sale deed bearing document No.4310/2012 (P.323/2008) executed by defendant No.1 Ex.B9 : Certified copy of agreement of sale dated 13.10.2006 executed by defendant No.1.

Page No. 66 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Witnesses examined for Plaintiffs in O.S.No.49 of 2016:

P.W.1 : P.Yadagiri Laxminarasimha Rao. P.W.2 : P.Subhadra P.W.3 : B.Chinthaiah

C.W.1 : Seelam Venkateswarlu

For Defendants:

D.W.1 : K.Padmavathi D.W.2 : K.Srinivasa Rao

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 02.04.2007 executed by defendant No.1 Ex.A2 : Office copy of legal notice dated 20.09.2011. Ex.A3 : Postal acknowledgment Ex.A4 : Served copy of plaint in O.S.No.50/2016 Ex.A5 : Certified copy of order in I.A.No.843/2011 in O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam Ex.A6 : Certified copy of plaint in O.S.No.51/2016. Ex.A7 : Certified copy of registered sale deed bearing document No.7635/2004 dated 30.09.2004. Ex.A8 : Certified copy of sale deed bearing document No.P-323/2008

dated 12.11.2008.

For Defendants:

Ex.B1 : Photograph depicting the shop Ex.B2 : Certified copy of registration details issued by Commercial Taxes Department. Ex.B3 : Certified copy of registered sale deed bearing document dated 12.11.2008. Ex.B4 : Certified copy of agreement of sale dated 13.10.2006 Ex.B5 : Certified copy of proceedings of the D.R.A., Khammam dated 30.11.2010. Ex.B6 : Letter dated 11.01.2019 addressed by the Sales Tax Office, Khammam

Page No. 67 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B7 : VAT certificate dated 19.08.2011.

Witnesses examined for Plaintiffs in O.S.No.50 of 2016:

P.W.1 : K.Padmavathi. P.W.2 : K.Srinivasa Rao P.W.3 : Mahender Singh Bharadwaj

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : B.Chinthaiah

Exhibits Marked for

Plaintiffs:

Ex.A1 :Certified copy of registered sale deed bearing documetn No.4310/2012, dated 12.11.2008. Ex.A2 :Proceedings issued by the District Registrar, Khammam vide MV/47/A/88/2009 Ex.A3 : Original agreement of sale dated 13.10.2006.

For Defendants:

Ex.B1 : Certified copy of sale agreement dated 02.04.2007 Ex.B2 : Endorsement on the reverse of first page of Ex.B1 dated 20.07.2007. Ex.B3 : Two photographs with C.D. Ex.B4 : Receipt issued by Photographer. Ex.B5 : Three positive photographs

Witnesses examined for Plaintiffs in O.S.No.51 of 2016:

P.W.1 : K.Valli Kumari. P.W.2 : Mahendrasingh Bharadwaj P.W.3 : M.Laxmikantha Rao

For Defendants:

D.W.1 : S.Venkateswarlu

Page No. 68 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Exhibits Marked for

Plaintiffs:

Ex.A1 : Original registered agreement of sale-cum-G.P.A. vide document No.5657/2001, dated 09.10.2001. Ex.A2 : Original registered sale deed bearing document No.7635/2004,

dated 23.09.2004.

Ex.A3 : Certified copy of agreement of sale dated 13.10.2006. Ex.A4 : Certified copy of registered sale deed bearing document No.4310/2008, dated 12.11.2008.

For Defendants:

Ex.B1 : Certified copy of unregistered agrement of sale deed dated 13.02.2008. Ex.B2 : Certified copy of neat copy of plaint in O.S.No.26/2012.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

Compared by:

Page No. 1 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT

KHAMMAM

Friday, this the 18th day of November, 2022.

Present: Dr.T.Srinivasa Rao,

Principal District Judge,

Khammam, FAC, II Additional District Judge, Khammam.

O.S.No.26 of 2012, O.S.No.49 of 2016, O.S.No.50 of 2016 and

O.S.No. 51 of 2016

O.S.No.26 of 2012:

Between:

1.Mylavarapu Kondal Rao (Died), L.Rs, 2.Mylavarapu Annapurnamma, W/o late Pitchaiah, Aged 80 years, Occu:House hold, R/o Sriram Hills, Khammam City and District. 3.Mylavarapu Aruna, W/o late Kondal Rao, Aged 48 years, Occu:House hold, R/o Sriram Hills, Khammam. 4.Mylavarapu Sravan Kumar, S/o late Kondal Rao, Aged 28 years, Occu:Business, R/o Sriram Hills, Khammam City. 5.Mylavarapu Uday Kumar, S/o late Kondal Rao, Aged 24 years, Occu:Business, R/o Sriram Hills, Khammam City. 6.Kothuri Amulya, D/o late Kondal Rao, Aged 25 years, Occu:House hold, R/o Sriram Hills, Khammam City.

(Plaintiffs No.2 to 6 were added as per orders in I.A.No.919/2017 dated 17.11.2017)

…..Plaintiffs in O.S.No.26/2012.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Podila Subhadra (Died), L.Rs.,

Page No. 2 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 5.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 6.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 7.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 8.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 9.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, (Defendant No.3 is added as per orders in I.A.No.189/2014 dated 03.06.2015) (Defendant Nos.4 to 9 as L.Rs. of defendant No.3 are added as per orders in I.A.No.3/2021, dated 23.11.2021)

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…..Defendants.

O.S.No. 49 of 2016:

Between:

1.Podila Subhadra (Died), L.Rs., 2.Podila Yadagiri Laxmi Narasimha Rao, S/o late Bikshamaiah, Aged 62 years, Occu:Pensioner, 3.Podila Papa Rao, S/o late Bikshmaiah, Aged 48 years, Occu:Agriculture, 4.Podila Muralikrishna, S/o late Bikshamaiah, Aged 50 years, Occu:Agriculture, 5.Podila Sreenivasa Rao, S/o late Bikshamaiah, Aged 45 years, Occu:Agriculture, 6.Podila Rajalingeswar Rao, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture, 7.Podila Shasi Kumar, S/o late Bikshamaiah, Aged 43 years, Occu:Agriculture,

Page No. 3 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

All are residents of Tekulapalli, Khammam Urban Mandal, Khammam District.

…...Plaintiffs in O.S.No.49 of 2016.

And

1.Seelam Venkateswarlu, S/o Narsaiah, Aged 62 years, Occu:Agriculture, R/o H./No.4-4-121, Guttala Bazar, Khammam Town. 2.Kummarikuntla Padmavathi, W/o late Kumaraswamy, Aged 65 years, Occu:House Hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Near Grain Market, Khammam Town. 3.Kummarikuntla Vallikumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Defendants in O.S.No.49 of 2016.

O.S.No.50 of 2016:

Between:

Kummarikuntla Padmavathi, W/o Kumaraswamy, Aged 65 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam. ….Plaintiff in O.S.No.50 of 2016.

And

1.Podila Yadagiri Narasimha Rao, S/o Bikshamaiah, Aged 50 years, Occu:Railway Police Constable, R/o Tekulapalli village, Khammam Urban Mandal, Khammam District. 2.Podila Papa Rao, S/o Bixamaiah, Aged 40 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 3.Podila Muralikrishna, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 4.Podila Srinivasa Rao, S/o Bixamaiah, Aged 32 years, Occu:Agriculture, R/o Srinagar Colony, 1st Line, Rotary Nagar, Khammam. 5.Podila Linga Raju, S/o Bixamaiah, Aged 35 years, Occu:Agriculture, R/ o Nagaram, 2nd Line, Srinagar Colony, Khammam Town. 6.Podila Sasi Kumar, S/o Bixamaiah, Aged 30 years, Occu:Agriculture, R/ o Srinagar Colony, 1st Line, KhammamTown. 7.Bandi Sekhar, S/o late Butchaiah, Aged 30 years, occu:Real Estate Agent, R/o Near Anjaneyaswamy Temple, Tekulapalli, Khammam Urban Mandal, Khammam District. ….Defendants in O.S.No.50/2016.

Page No. 4 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.51 of 2016:

Between:

Kummarakuntla Valli Kumari, W/o Srinivasa Rao, Aged 35 years, Occu:House hold, R/o H.No.4-5-153/2, Bijjalavari Thota, Khammam Town and District. ….Plaintiff in O.S.No.51/2016.

And

Seelam Venkateswarlu, S/o Narsaiah, Aged 61 years, Occu:Agriculture, R/o H.No.4-4-121, Guttala Bazar, Khammam Town and District. ….Defendant in O.S.No.51/2016.

These suits are coming before me for final hearing on 01.11.2022 in the presence of Sri K.P.Satyanarayana Rao, Advocate for Plaintiffs in

O.S.No.26/2012, Sri Mittapalli Srinivasa Rao, Advocate for Defendant

No.1, Defendant No.2 remained exparte and that of Sri B.Kalyan Rao, Advocate for Defendant No.3 in O.S.No.26/2012; Sri B.Kalyan Rao, Advocate for plaintiffs in O.S.No.49/2016, Defendant No.1 remained exparte and that of Sri V.N.Hanumantha Rao, Advocate for Defendant Nos.2 and 3 in O.S.No.49/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.50/2016, Sri B.Kalyan Rao, Advocate for Defendant Nos.1 to 6 and Defendant No.7 remained exparte in O.S.No.50/2016; Sri V.N.Hanumantha Rao, Advocate for Plaintiff in O.S.No.51/2016 and that ofSri Mittapalli Srinivasa Rao, Advocate forDefendant in

O.S.No.51/2016; upon perusing the material papers on record; upon

hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:

COMMON JUDGMENT

Suit in O.S.No.26/2012 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of the agreement of sale dated 13.02.2018 directing the defendant No.1 to execute registered sale deed in respect of the suit schedule property by

Page No. 5 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

receiving balance sale consideration; to declare the registered sale deed bearing document No.P323/2008 dated 12.11.2008 executed by 1st defendant in favour of 2nd defendant as null and void and not binding on the plaintiff; to execute registered sale deed in respect of the suit schedule property through process of court, in case of defendant No.1 fails to execute the registered sale deed in favour of the plaintiffs and for awarding costs of the suit.

2. Suit in O.S.No.49/2016 is filed by the plaintiffs seeking specific performance of contract against the defendants in pursuance of agreement of sale dated 2.4.2007 in respect of the suit schedule property directing the defendants to execute valid registered sale deed in favour of the plaintiffs, to grant perpetual injunction, restraining the defendant

Nos.1 to 3, their men and any other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property and for awarding costs of the suit.

3. Suit in O.S.No.50 of 2016 is filed by the plaintiff against the defendants seeking perpetual injunction, restraining the defendants, their men, agents, servants and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property and for awarding costs of the suit.

Page No. 6 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

4. O.S.No.51/2016 is a suit filed by the plaintiff seeking specific performance of contract against the defendant in pursuance of the oral agreement of contract dated 24.09.2004 directing the defendant to execute valid registered sale deed in respect of the suit schedule property, in case of failure of defendant, to execute the registered sale deed through process of law by the court in respect of the suit schedule property and for awarding costs of the suit.

5. The averments of the plaint in O.S.No.26 of 2012, in brief; are that:

i) Defendant No.1 has offered to sell the suit schedule property i.e., agricultural land measuring to an extent of Ac.1.12 ½ gts in

Sy.Nos.208/A, 208/I and 208/O of Khanapuram Haveli and the plaintiff accepted to purchase the same for a total sale consideration of

Rs.1,12,50,000/- in lumpsum. Accordingly, defendant No.1 had executed an agreement of sale dated 13.02.2008 in favour of the plaintiff for sale of said land and on the same day, the defendant had received an amount of Rs.28,12,500/- towards advance sale consideration and the said agreement of sale was duly attested. Thereafter, the plaintiff has paid

Rs.5,00,000/- on 15.04.2008, Rs.10,00,000/- on 8.5.2008 and

Rs.5,00,000/- on 2.6.2008, Rs.8,00,000/- on 28.7.2008, Rs.5,00,000/- on

Page No. 7 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

27.9.2008, Rs.9,00,000/- on 11.10.2008, Rs.10,00,000/- on 6.11.2008,

Rs.7,00,000/- on 11.11.2008 and Rs.10,00,000/- on 18.12.2008 to the 1st defendant towards balance sale consideration. Thus, in all the plaintiff has paid total amount of Rs.97,12,500/- by 18.12.2008 to the defendant

No.1 under the said agreement of sale and all the payments made by plaintiff were acknowledged by the defendant No.1 on the reverse of the said agreement of sale.

ii) The 1st defendant did not come forward to execute registered sale deed by receiving balance sale consideration, in spite of several demands by plaintiff and therefore the plaintiff got issued legal notice on 10.1.2011 demanding the 1st defendant to execute registered sale deed by receiving balance sale consideration and having acknowledged the same, the 1st defendant got issued reply notice on 28.01.2011 admitting the fact of execution of said agreement of sale and receipt of Rs.97,12,500/-. But surprisingly and malafidely the 1st defendant had taken a plea that the land measuring Ac.1.00 gts covered by the said agreement of sale dated 13.02.2008 was conveyed in favour of Smt.Kummarikuntla Padmavathi, mother-in-law of the plaintiff, alleging that he has done so, at the request of brother-in-law of the plaintiff and further alleged that plaintiff has no capacity to pay remaining sale

Page No. 8 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

consideration, which is absolutely false and baseless. Therefore, the plaintiff got issued reply notice dated 17.02.2011 to the reply notice dated 28.1.2011 got issued by 1st defendant, denying the said allegations.

iii) There is no truth in the plea by 1st defendant that the said registered sale deed was executed in favour of Kummarikuntla

Padmavathi (defendant No.2) at the instance of the plaintiff’s brother-in- law and the same was false and baseless. The further allegation that plaintiff’s wife and plaintiff’s brother-in-law came to the Registrar Office and that at the request of plaintiff the said sale deed was executed in favour of defendant No.2 etc., are false and baseless. None of the persons mentioned in rejoinder notice dated 28.01.2011 in para No.5 attested the sale deed executed by 1st defendant and the entire story was created by the 1st defendant to deprive the plaintiff’s legitimate right to obtain registered sale deed in respect of the suit schedule property under the agreement of sale dated 13.02.2008.

iv) The plaintiff is no way concerned with the said transaction done in favour of 2nd defendant by 1st defendant and as such the question of plaintiff returning the original agreement of sale dated 13.02.2008 executed by 1st defendant in favour of plaintiff does not arise. The plaintiff has got capacity to pay the balance sale consideration and is ever ready

Page No. 9 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

and willing to perform his part of contract and is entitled to enforce the said agreement of sale dated 13.02.2008 against the defendant having already parted with huge amount of Rs.97,12,500/-. As such, the plaintiff is entitled to sue and the defendants are liable to be sued on the account of agreement of sale dated 13.02.2008. As there is no hope of 1st defendant coming forward to execute registered sale deed, the plaintiff is compelled to file this suit for specific performance of contract.

6. i) On the other hand, defendant No.1 in O.S.No.26/2012 filed written statement, denying the plaint averments and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation. Plaintiff did not approach the court with clean hands and he is not entitled for equitable relief of specific performance of agreement basing on the alleged agreement of sale dated 13.02.2008 to sell the suit schedule property and that defendant No.1 received

Rs.97,12,500/- by way of deferred payments, but the said amount is not entirely from plaintiff. The plaintiff made several demands to execute registered sale deed by receiving balance sale consideration is invented and that the legal notice dated 10.01.2011 got issued by plaintiff, with incorrect allegations and defendant No.1 got issued reply dated 28.01.2011 through M.Nageswar Rao, Advocate.

Page No. 10 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ii) It is further contended that one K.Srinivasa Rao, who is brother-in-law of plaintiff, is neighbour after three houses to defendant

No.1 and he is closely acquainted. Bargain to purchase the suit schedule land, was settled by said K.Srinivasa Rao and plaintiff, for consideration of Rs.1,12,50,000/- and agreement of sale dated 13.02.2008 was executed with stipulation to pay balance sale consideration within five months. But the amount of consideration could not be paid in time due to their financial constraints. In fact, the plaintiff alone has no financial capacity to pay such huge amount. After paying an amount of

Rs.10,00,000/- on 18.12.2008 the plaintiff and his brother in law

K.Srinivasa Rao, expressed their inability to pay balance consideration and proposed to execute registered sale deed for proportionate extent of land for total amount of Rs.97,12,500/- paid to defendant No.1 till 18.12.2008. Accordingly, a registered sale deed No.1323/2008 dated 12.11.2008 was got executed in favour of Smt.Kummarikuntla

Padmavathi for an extent of Ac.1.00 gts. Said Kummarikuntla

Padmavathi is none other than the mother-in-law of plaintiff and mother of K.Srinivasa Rao. It may not be out of place to mention that defendant

No.1 can register the property in parts, in plots or en-block, in the name of plaintiff or in the name of other persons at the option of plaintiff, as per

Page No. 11 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

terms of the agreement of sale dated 13.02.2008. Out of good faith and bonafide belief, defendant No.1 executed said registered sale deed in the name of Kummarikuntla Padmavathi. Above registration was kept pending by registering authorities as valuation was disputed to save stamp duty. Another agreement of sale with ante date allegedly dated 13.10.2006 was also obtained in the name of Kummarikuntla

Padmavathi, for a consideration of Rs.12,00,000/- from defendant No.1 to support their family members who were actively involved in the above affairs.

iii) There is a discrepancy in respect of availability of Ac.1.12 ½ gts of suit schedule property. An extent of Ac.0.04 gts of land was alienated by defendant No.1 to one Podila Subhadra, W/o Bikshmaiah, who are neighbouring land owners on southern side of suit schedule property through agreement of sale in the year, 2007. Plaintiff and

K.Srinivasa Rao to make use of NSP land abutting to suit schedule land on northern side, have purposefully got mentioned the boundary allegedly as land alienated by defendant No.1 to one Kummarikuntla Valli

Kumari. Said Valli Kumari is none other than wife of K.Srinivasa Rao.

The plaintiff and his brother-in-law K.Srinivasa Rao, malafidely trying to take undue advantage of agreement of sale dated 13.02.2008 retained

Page No. 12 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

by them and northern boundary allegedly mentioned as land of

Kummarikuntla Vallikumari and filed above suit and also

O.S.No.259/2011 on the file of Senior Civil Judge’s Court, Khammam

against defendant No.1 seeking specific performance of oral agreement of sale. Defendant No.1 cannot have any objections, if plaintiff is desirous to get the registered sale deed executed in his favour by cancellation of registered sale deed No.323/2008 dated 23.10.2010 executed in favour of defendant No.2, his mother-in-law. It is pertinent to mention here that said sale deed No.P323/2008 is devoid of consideration and it was executed for the consideration of Rs.97,12,500/- paid till 18.12.2008 on agreement of sale dated 13.02.2008. Considering the above, conspicuous silence on the part of plaintiff, having paid

Rs.97,12,500/- by 18.12.2008 and seeking performance of agreement of sale dated 13.02.008 after lapse of nearly three years, does not inspire any confidence. Plaintiff and said K.Srinivasa Rao in connivance with defendant No.2 and Kummarikuntla Padmavathi, intended to gain wrongfully by blackmailing tactics, under the guise of agreement of sale

dated 13.02.2008, remained with them by chance. Finally defendant

No.1 prayed to dismiss the suit with exemplary costs.

Page No. 13 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

7. i) Defendant No.3 filed written statement, denying the plaint averments and further contending that the above suit is not maintainable either in law and on facts, Plaintiff alleging to have paid huge amount of

Rs.97,12,500/- under agreement of sale dtd. 18-12-2008 and kept silent till fag end of (3) years, does not inspire confidence. Such inordinate delay precludes plaintiff for grant of relief of specific performance. This defendant is not aware of alleged agreement of sale dt.18-12 2008, executed in favour of plaintiff by defendant No.1. Plaintiff is closely related to defendant No.2, who is none other than her son-in-law. One

Kummarikuntla Padmavathi is daughter-in-law of defendant No.2.

Defendant No.1 is close family friend of plaintiff, defendant No.2 and son of defendant No.2 namely Kummarikuntla Sreenu, defendant No.1 and 2 live in nearby houses. Defendant No.1 is said to own Ac.1.12 gts, of land in Sy.No.208/A, 1 & O, which was purchased through registered sale deed No.7635/2004 dated 23-06-2004. Said land of defendant No.1 is situated on northern side of land of this defendant No.3 and her husband late Podila Bikshamaiah i.e., Ac.1.04 gts, in Sy.No.206, 207 of

Khanapuram Haveli. Defendant No.3 and her husband bonafidely purchased a triangular piece of Ac.0.04 gts, of land from defendant No.1 through an agreement of sale dt.02-04-2007, for a consideration of Rs.2

Page No. 14 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

lakhs. Defendant No.3 paid Rs.50,000/- on 02-04-2007, Rs.30,000/- on 30-06-2007 and Rs.1 lakh on 20-07-2007 to defendant No.1. Defendant

No.1, he endorsed receipt of said on amounts of part of sale consideration on reverse of agreement of sale, defendant No.1 delivered possession over said Ac.0.04 gts, in favour of defendant No.3. Said

Ac.0.04 gts, of land is advantageous for defendant No.3, to get northern boundary of her land, a straight one. Subsequently, defendant No.1 suffered heart ailment and with other health problems. Defendant No.3 in good faith believed defendant No.1 in postponing execution of registered sale deed time and again, on pretext of said ill health. However defendant No.1 delivered possession of said Ac.0.04 gts, of land in

Sy.No.208 of Khanapuram Haveli, in favour of this defendant No.3, on 20-07-2007. Defendant No.3 got laid stone planks around boundary for their Ac.1.08 gts, land including Ac.0.04 gts, of land purchased from defendant No.1. Defendant No.3 in her own right has let out said land of

Ac.1.08 gts, in the year 2010 to one Cheepu Veeraiah for marble and granite business under the name and style as M/s Venkateswara Marble and Granite.

ii) While things stood thus, at first instance, defendant No.2 herein filed a suit for perpetual injunction vide OS.No.200/2011 on the file

Page No. 15 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of court of learned Senior Civil Judge, Khammam, against sons (6 No.s) of this defendant No.3 and one Bandi Sekhar. It was alleged that defendant No.2 herein is owner of Ac.1.00 of land in Sy.No.208/1, O, which was contended to be purchased from defendant No.1 herein through a registered sale deed (pending) No.P.323/2008 dated 18-12- 2008. Said Ac.1.00 gts of land of defendant No.2, claimed on north of land of husband of this defendant No.3, namely late Podila Bikshamaiah.

Defendant No.2 contended that, sons of this defendant No.3 tried to interfere with her Ac.1.00 gts of land. Defendants No.1 and 2 in connivance premeditatedly got referred an agreement of sale dt.13.10.2006 in recitals of said sale deed and mentioned incorrect boundary on north. Defendant No.2 filed a separate petition in

IA.No.843/2011 in OS.No.200/2011 for interim injunction and while

granting interim injunction learned Senior Civil Judge, Khammam, held that, respondents therein, who are sons of defendant No.3 herein can seek necessary legal remedy in the event of defendant No.2 herein, tries to interfere with land of defendant No.3 herein.

iii) It is also transpired that, another suit in OS.No.259/2011 on the file of Court of Senior Civil Judge, Khammam, was conclusively filed by one Kummarikuntla Valli Kumari, who is daughter-in-law of defendant

Page No. 16 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.2 herein, against defendant No.2 herein for specific performance to execute registered sale deed for Ac.0.12 gts of land in Sy.No.208/A, alleging oral agreement of sale purportedly on 24-09-2004. Said

OS.No.259/2011 was filed to countenance OS.No.200/2011. Plaintiff

herein is the person behind in filing above OS.No.200/2011 and

OS.No.259/2011. Though not admitting, defendant No.3 or any of her

family members do not have knowledge about alleged sale transactions in favour of plaintiff nor in favor of defendant No.2 and in favor of said

Kummarikuntla Valli Kumari, prior to filing of above respective suits. The extents of land in above OS.No.200/2011 and in OS.No.259/2011 are more than the extent of land physically available and own by defendant

No.1. In order to secure her interests and rights over Ac.0.04 gts, of land based on agreement of sale dt.02-04-2007, executed by defendant No.1, this defendant No.3 filed OS.No.223/2012 on the file of learned Senior

Civil Judge, Khammam, for specific performance to execute registered

sale deed, against defendants No.1 and 2 herein and Kummarikuntla

Valli Kumari, who is daughter in law of defendant No.1 and plaintiff in

OS.No.259/2011. Above circumstances manifestly explain that, plaintiff

herein, defendants No.1 and 2 are purposefully inventing litigation to deprive possession and interests of defendant No.3 over her Ac.0.04 gts.

Page No. 17 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

In furtherance of said object, above suit is filed as an afterthought based on alleged agreement of sale dt.18-12-2008. Considering the same suit relief for specific performance is frivolous and without any justification.

Plaintiff did not approach the Court with clean hands and he is not entitled for equitable relief of specific performance. More so, filing of above suit is abuse of process of court and prayed to dismiss the suit with costs.

8. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether defendant No.1 offered to sell land to an extent of Ac.1.12 ½ gts in Sy.No.208/A, 208/I and 208/O of Khanapuram Haveli to the plaintiff?

2.Whether defendant No.1 executed agreement of sale dated 13.02.2008 in favour of plaintiff by receiving Rs.28,12,500/- towards advance sale consideration? 3.Whether the plaintiff is the person behind filing of suit in

O.S.No.200 of 2011 and O.S.No.259 of 2011?

4.Whether the plaintiff is entitled to the relief as prayed for? 5.To what relief?

9. Subsequently, on the basis of amendment made to the plaint and in view of the additional evidence filed by the defendants, the following additional issue is framed on 02.03.2022.

Page No. 18 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Additional Issue:

“Whether the plaintiff is entitled for return of earnest money advance amount as prayed for?

10. At the time of trial, P.Ws.1 and 2 were examined and Exs.A1 to A7 are marked on behalf of plaintiff. On behalf of the defendants,

D.Ws.1 to 4 were examined and Exs.B1 to B9 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

11. The averments of the plaint in O.S.No.49 of 2016, in brief; are that:

i) That plaintiff and her husband late Bikshmaiah own land in

Sy.No.206 & 207 of Khanaapuram Haveli, Khammam (U) (M) & District of 110 ft. width By-pass road situated to south of said land of plaintiff and her husband. Land of defendant No.1, in Sy.No.208 is situated on north abutting to lands of plaintiff and her husband. An extent of Ac 0.04 gts, of triangular piece of land of defendant No.1, was purchased by plaintiff to set even dimensions of their previously existing land in Sy.No.206 & 207.

Bargain was settled for a consideration of Rs.2 lakhs; plaintiff paid

Rs.50,000/- to defendant as advance, an agreement of sale dt.02.04.2007 was executed by defendant No.1. Subsequently, plaintiff paid Rs.50,000/- on 30-06-2007 and Rs.1,00,000/- on 20-07-2007 to

Page No. 19 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

defendant towards part payment of consideration. Defendant acknowledged receipts of said part payments on reverse of agreement of sale. Further, on 20-07-2007 defendant No.1 delivered possession of said

Ac.0.04 gts, of land in part performance of agreement of sale and endorsed to the said effect on reverse of agreement of sale. Since then plaintiff has been in possession of Ac.0.04 gts, alienated by defendant, included in their land in Sy.No.206 & 207, constituting a compact block of

Ac.1.08 gts.

ii) Original agreement of sale dt.02-04-2007 executed by defendant No.1 in favour of plaintiff was filed in OS.No.200/2011 on the file of this Court. Subsequently defendant No.1 suffered heart ailment and also with other health problems. Plaintiff believed defendant in postponing execution of registered sale deed time and again, on the pretext of said ill health. Defendant made plaintiff to believe that, he has Ac.1.12 gts, of land to the north of land of plaintiff and her husband (in Sy.No.206 &207) at the time of entering in to agreement of sale dt.02-04-2007. However, plaintiff has been in possession of said Ac.0.04 gts, of land in Sy.No.208 of Khanapuram Haveli, which is suit schedule property. Rough sketch of suit schedule property is submitted for better appraisal. That, husband of plaintiff, died about 12 years back. Plaintiff and her sons have leased

Page No. 20 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

their land of Ac.1.08 gts, for past about more than one year, to one

Cheepu Veeresham, who is running marble and granite business in the name and style as M/s Venkateswara Marble & Granites. Along length of boundary of Ac.1.08 gts, plaintiff erected stone planks signifying their ownership and physical possession over the property, which include

Ac.0.04 gts, of suit schedule property.

iii) While things stood thus, defendant No.2 filed

OS.No.200/2011 on the file of this Court against sons of plaintiff for

injunction alleged to have purchased one acre of land from defendant

No.1 in Sy.No.208/E and 208/O and defendant No.2 and her sons tried to encroach in to part of Ac.0.04 gts, of land purchased by plaintiff from defendant No.1 i.e., suit schedule property. Defendant No.2 contended that, suit schedule property is part of alleged Ac.1.00 of land purchased sons, for perpetual injunction, alleging to by her from defendant No.1 through registered sale document No.P/323/2008 dt.12-11 2008.

Defendant No.2 filed a separate petition in IA.No.843/2011 seeking interim injunction in respect of suit schedule property herein. Further, the said injunction petition which was allowed by this Court on 22-07-2011, with a finding that, respondent therein, who is plaintiff herein to seek necessary legal remedy in the event petitioner therein defendant No.2

Page No. 21 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

herein, tries to interfere with land of plaintiff herein. Defendants No.1 and 2 in connivance have fraudulently brought up an agreement of sale with ante dated 13-10-2006, to defeat interests of plaintiff over suit schedule

Ac0.04 gts, of land purchased by her through agreement of sale dt.02-04 2007, Northern boundary for alleged Ac.1.00 of land related to agreement of sale dt.13 20-06 of defendant No.2 and sale document No.1211/2008 was motivatedly and vaguely mentioned as "land of defendant No.3".

iv) Defendant No.3 is none other than daughter in law of defendant No.2. That it is also transpired that, defendants No.1 and 2 collusively got filed another suit, OS.No.259/2011 on the file of this Court, by defendant No.3 against defendant No.1 for specific performance to execute registered sale deed for Ac.0.12 gts, of land alleging oral agreement of sale dt.24-09-2004 to countenance defence of plaintiff herein in IA.No.843/2011 in OS.No.200/2011. It took time to obtain certified copy of plaint in OS.No.259/2011 with permission. Above circumstances emulate that, defendants No.1 to 3 are purposefully inventing litigation to deprive possession and interests of plaintiff over suit schedule land of Ac.0.04 gts, under the guise of incorrect descriptions of property in their documents. Further it is to be ascertained, whether

Ac.1.12 gts of land available for defendant No.1 even after alienating

Page No. 22 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ac.0.04 of land in favour of plaintiff. That, plaintiff took legal notice dt.20- 09-2011 demanding defendant No.1 to execute registered sale deed in respect of suit schedule property. Defendant No.1 acknowledged receipt of legal notice on 28-09-2011 but failed to comply with the same. In the said circumstances, plaintiff cannot get a registered sale deed executed by defendant No.1 and can secure her possession in respect of suit schedule property, without legal course.

12. Defendant No.1 remained exparte.

13.Defendants No.2 and 3 filed common written statement, denying the material allegations made in the plaint and further contending that defendant No.2 in this suit filed 0.S.No.200/2012 on the file of this court against Podila Yadagiri Narasimha Rao, Podila Papa Rao, Podila

Muralikrishna, Podila Srinivasa Rao. Podila Linga Kaju sixamaiah, Podila

Sasi Kumar and one Bandi Sekhar for perpetual injunction, when they tried to encroach into the land in suit schedule property in

O.S.No.200/2011 and they falsely pleaded that defendant No.1 in this suit

executed an agreement of sale in favour of their mother for an extent of

Ac.0.04 gts of land in Sy.No.208/A, I, O. and filed the alleged agreement of sale in the said suit O.S.No.200/2011. That in I.A.No.843/2011 in

Page No. 23 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

O.S.No.200/2011 after hearing both sides, this court passed interim

injunction in favour of defendant No.2 in this suit, who is the plaintiff in

O.S.No.200/2011.

14. That having taken a false plea in O.S.No.200/2011, now the defendants 1 to 6 got this suit filed by their mother Smt.P.Subhadra, who does not know anything about the false pleas taken by her sons. The so- called agreement of sale dated 2.4.2007 is brought into existence in collusion with the defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. The defendant No.1 in this suit in order to grab Ac.0.04 gts of land out of the suit schedule property in O.S.No.200/2011. Defendant No.1 with hostile attitude towards defendant Nos.2 and 3 in this suit colluded with the plaintiff and her sons making a false pleas that he had sold an extent of

Ac.0.04 gts of land. The boundaries shown in the suit schedule property in their suit are not existent and there are no such boundaries on the spot and the defendant No.1 has no land with such boundaries as described by him or the plaintiff. The entire effort of the plaintiff and her sons is to grab Ac.0.40 gts of land from the possession of this defendant No.2 out of the suit schedule property in O.S.No.200/2011 on the file of this court.

The plaintiff is not entitled to any relief much less injunction. Defendant

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No.1 having sold his entire land in favour of these defendants is left with no land, as such, he cannot execute any agreement of sale is a false and baseless document. The plaintiff has approached the court with unclean hands and therefore she is not entitled to the suit claim. The plaintiff has no cause of action to file the suit and the suit is barred by limitation.

Finally, the defendants 2 and 3 prayed to dismiss the suit.

15. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the agreement of sale is true and valid? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree? 4.Whether the plaintiff is entitled for injunction? 5.To what relief?

16. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A8 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B7 were marked on behalf of the defendants. Further, C.W.1 was examined and no documents were marked.

17. The averments of the plaint in O.S.No.50/2016, in brief are that:

Page No. 25 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

i) The plaintiff is the owner and possessor of agricultural wet land measuring to an extent of Ac.1.00 gts i.e., Ac.0.20 gts in Sy.No.208/1 and Ac.0.20 gts in Sy.No.208/O, in single compact block situated at

Khanapuram Haveli, Khammam Urban Mandal, Khammam District, which is the suit schedule property. The plaintiff purchased the suit schedule property from erstwhile owner Seelam Venkateswarlu for the suit most respectfully for valid consideration through registered sale deed dated 12.11.2008 and registered on 18.12.2008 at the Joint Sub-Registrar

Office, Khammam. The Joint Sub-Registrar, Khammam has given document vide pending Registration No.323/2008, as the plaintiff disputed the valuation made by Joint Sub-Registrar Khammam.

Considering the dispute raised by the plaintiff, the District Registrar,

Khammam agreed to decrease the value of said land purchased by plaintiff i.e., suit schedule property by 20% and the plaintiff had paid the same and the proceedings were issued by the Joint Sub-Registrar, accepting the document for Registration and it was duly Registered and according to the Joint Sub-Registrar, Khammam, the Registered document will be returned to the plaintiff in due course after the approval is given by the competent authority and the proceedings issued by the

District Registrar, Khammam.

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ii) That the plaintiff applied for Certified copy of the said pending Registered document for filing the same in the suit and accordingly Joint Sub-Registrar, Khammam has issued Certified copy of sale deed through which the plaintiff has purchased the suit schedule property. The Plaintiff undertakes to file the original Registered Sale deed as and when it is made available to her by Joint Subs Registrar,

Khammam at the earliest possible time. The plaintiff having purchased the suit schedule property is in peaceful possession and enjoyment of the same and the land is an agricultural land. But the same is kept fallow in view of the urbanization of the area presently, as many marble shops have been set up and now it is some what difficult to cultivate land. The defendants claiming to be neighbouring land owners, are trying to encroach upon the said land of the plaintiff without any sort of right. The plaintiff with a view to protect her property is erecting a barbed wire fencing around the suit schedule property in the month of October 2010 and the defendants made an attempt to interfere with the activities of erection of barbed wire around the suit schedule property. Since then repeatedly either the defendants or their men are making attempts to pull down the barbed wire fencing pillars erected by the plaintiff and the plaintiff could resist their illegal acts. The defendants are in a view to

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chase away the plaintiff from suit schedule property with malafide intention of knocking away the suit schedule property for a throw away price as the plaintiff is a helpless woman.

iii) The purchase of suit schedule property by the plaintiff has become an eye-sore to the defendants and some of the defendants are real estate agents who have caste their evil eye on suit schedule property. The plaintiff approached the concerned police for protection, but unfortunately no help was given by the police, citing the reason that it is a civil dispute, which in fact the attempt to tress pass into the suit schedule property by defendant, is also an offence, not withstanding the fact that it is a civil dispute. To protect her property from illegal attempts by the defendants, the plaintiff has no other way except to file the suit for perpetual injunction before this Court.

18. On the other hand, Defendant No.7 remained exparte.

19.Defendant Nos.1 to 6 filed common written statement, denying the material allegations of the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation who did not approach the court with clean hands and she is not entitled for equitable relief of injunction. Defendant No.7 is no way concerned to defendants No.1 to 6, plaintiff for reasons better known

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arrayed as defendant No.7. Admittedly southern boundary for suit schedule property covered under registered sale deed P.No.323/2008 dt.12-11-08, is land of father of defendants No 1 to 6. Similarly in certificate dt.27-08-2004 issued by Mandal Revenue Officer, Khammam (U) (M), appended to the said sale deed southern boundary is mentioned as land of father of defendants No.1 to 6. As per the recitals of said sale deed, one Seelam Venkateswariu vendor of plaintiff, own Ac.1.12 ½ gts, în Sy.No.208/A, 208/1 & 208/0, out of which Ac. 1.00 was alienated in favour of plaintiff through said sale deed, which is allegedly described as suit schedule property. Northern boundary in Certificate issued by MRO, is mentioned as NSP main canal acquired area for an extent of Ac.1.10 gts,. While the extent is enlarged to Ac.1.12 gts, in occupancy certificate issued by Revenue Divisional Officer, dt.25-09-08. Seelam Venkateswarlu vendor of plaintiff, alienated a triangular piece of appurtenant land over an extent of Ac.0.04 gts, out of Sy.No.208/A, 208/1 & 208/0 to north of land of defendants No.1 to 6 in Sy No.206 and 207 through an agreement of sale dt.02-04-07 for a consideration of Rs.2,00,000/- in favour of Podila

Subhadra/mother of defendants No.1 to 6. Further, Seelam

Venkateswarlu vendor has delivered possession of said Ac.0.04 gts, of land under endorsement dt.20.07.2007 on the reverse of said agreement

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of sale. Including said Ac.0.04 gts, father of defendants No.1 and 6 and their mother own compact block of Ac.1.08 gts, in S.No.206, 207 &208.

20. Defendant No.1 and 6 and their mother have been in absolute and uninterrupted possession of Ac.1.08 ¾ gts and the same was leased to one Cheepu Veeresh, who is running marble and granite business in the name and style as "Sri Venkateswara Marbles for past more than one year. Around the boundary, defendants Nos.1 to 6 has erected stone planks before it was leased, which signify their physical possession over

Ac.108 gts. Photographs dt.02-07-2011 closely depict the line of stone planks (12 Nos) on western boundary of land of defendants No 1 to 6.The description of suit schedule property alleging agricultural land of

Kummarikuntla Vallikumari, later NSP main canal on northern side, is erroneous and motivatedly mentioned. Defendants No.1 to 6 reliably came to know that, said Kummarikuntia Vallikumari none other than daughter in law of plaintiff. Plaintiff under the guise of such wrongly described northern boundary trying to encroach part of Ac.1.08 3/4 gts of defendants No.1 to 6, without any right or concern. Plaintiff failed to submit any rough sketch to establish her possession as per alleged northern boundary of Kummarikuntla Vallikumari and the land mark of

NSP acquired land. More-so, plaintiff instead of standing on her own legs

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alleged that, defendants No.1 to 6 admitted that, suit schedule property is situated on northern side of their land in her counter filed in interlocutory application, which is misconceived. It is pertinent to mention that, plaintiff failed to disclose extent of alleged land of Kummarikuntla Vallikumari and it's survey numbers on north and western side of suit schedule property, which is a material suppression.

21. It appears that, plaintiff in connivance with Seelam

Venkateswarlu has created agreement of sale allegedly dt.13-10-2006 and recitals in registered sale document No.P/323/2008 did 12-11-2008 allegedly referring said agreement of sale dt.13-10-06 are premeditated as a make believe affair that, sale transaction in favour of plaintiff is prior to sale transaction in favour of Smt.Podila Subhadra, mother of defendants No.1 to 6. It is incorrect to allege that, from October 2010 defendants No.1 to 6 are making attempts to interfere with possession and enjoyment of plaintiff and that, she started erecting barbed wire fencing, is baseless. It is also incorrect that, during 2" and 3 weeks of

June 2011 made an attempt to interfere with possession of plaintiff, to pull down the pillars of barbed wire fencing Photographs submitted by defendants No.1 to 6 do not show any barbed wire fencing on any comer near by land of defendants No.1 to 6. Mean-while it is transpired that,

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Kummarikuntla Vallikumari daughter in law of plaintiff collusively filed OS

No.259/2011 on the file of this Court, against Seelam Venkateswarlu, for specific performance of contract alleging oral agreement of sale, as counter blast to above contention of defendants No.1 to 6. Finally, defendants 1 to 6 prayed to dismiss the suit.

22. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office for trial:

1.Whether the plaintiff is in peaceful possession and enjoyment over the plaint schedule property, as on the date of filing of this suit? 2.Whether the plaintiff is entitled for consequential permanent injunction? 3.To what relief?

23. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A3 are marked on behalf of plaintiff. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked on behalf of the defendants.

24. The averments of the plaint in O.S.No.51/2016, in brief are that:

i) That plaintiff entered into an oral agreement of contract with the defendant to purchase the suit schedule property measuring to an extent of Ac.0-12 ½ 2gts. from and out of Sy.No.208/A situated at

Khanapuram Haveli Revenue village, Khammam Urban for a total

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consideration of Rs.2,00,000/- on 24.09.2004. The defendant received the said sum towards entire sale consideration for the suit schedule property and out of good faith, the oral agreement was not reduced into writing and the said transaction took place on 24.09.2004 in the presence of mediators namely Kesa Srikanth, Mellacheruvu Laxmikantha Rao and

B.Mahinder Singh. The suit schedule property and another extent of

Ac.1.00 gts was purchased by the defendant through registered sale deed bearing document No.7635/2004 on 23.09.2004 (single compact block) and at the time of said registration, the defendant informed the husband of the plaintiff that to clear the debt incurred by him, white purchasing this suit land and another extent of Ac.1.00 gts through the said registered sale deed No.7635/2004, be needed some aspect, as such, he offered to sell the suit schedule property for Rs.2,00,000/ in the presence of above said elders.

ii) Subsequently to the oral agreement of sale dt.24-09-2004, the defendant executed an agreement of sale dt.13-10-2006 selling the remaining extent of Ac.1-00 gts in favour of Smt.Kummarakuntla

Padmavathi, the mother-in-law of plaintiff and later, he executed a registered sale deed bearing document P-323/2008, dt.12-11-2008 for the said extent of Ac.1.00 gts. The defendant is left with no land which had

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purchased through registered sale deed bearing document

No.7635/2004, dt.23-09-2004 from his vendor. That having sold the suit schedule property in favour of the plaintiff in this suit, through an oral agreement of sale and having sold the remaining extent of Ac.1-00 gts of land in favour of the mother-in-law of the plaintiff, the defendant delivered two original registered sale deeds pertaining to the suit schedule property and another extent of Ac.1-00 (which is a single com pact block) to the mother-in-law of the plaintiff. Therefore, it is established that the defendant entered into an oral agreement of sale with the plaintiff offering to sell the suit schedule property for a total consideration of Rs.2,00,000/ and also delivered possession of the suit land on the date of oral agreement of sale itself. That on the request made by the plaintiff, her mother-in-law (K.Padmavathi) handed over the two original sale deeds to the plaintiff.

iii) The defendant while executing the registered sale deed in favour of the mother-in-law of the plaintiff, admitted the fact that the suit schedule property in this suit was sold in favour of the plaintiff, which is abutting to the Ac.1-00 of land sold by the defendant in favour of mother- in-law of the plaintiff..in the registered sale deed No.P-323/2008 by mentioning the suit schedule property in this suit as the land sold in

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favour of the plaintiff in this suit. The suit schedule property in this suit is situated on the northern and part of western side of Ac.1.00 gts of land covered by registered sale deed No.P323/2008 executed in favour of

K.Padmavathi, the mother-in-law of plaintiff by the defendant. The plaintiff demanded the defendant to execute the registered sale deed in respect of the suit schedule property , but the defendant had postponed the same on one pretext or the other and there is no hope of defendant executing the registered sale deed in near future. Hence the suit for specific performance of contract basing on the oral agreement of sale dated 24.09.2004.

25. i) Defendant filed written statement, denying the material allegations made in the plaint and further contending that the suit is not maintainable either in law or on facts. Plaintiff is guilty of misrepresentation and she did not approach the court with clean hands and she is not entitled for specific performance of agreement, as alleged.

The suit is filed for specific performance of contract allegedly dated 24.09.2004 orally entered by plaintiff and defendant, to sell Ac.0.12 ½ gts, in Sy.No.208/A in the presence of Kesa Srikanth, Mellacheruvu

Lakshmikantha Rao and B.Mahinder is incorrect and denied. It is also incorrect that, defendant received Rs.2 lakhs from plaintiff towards sale

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consideration and that delivered possession of suit land in favour of plaintiff. Except vague and self serving allegations, plaintiff failed to disclose cause of action to file above suit. Further plaintiff alleging to have demanded defendant to execute registered sale deed does not arise.

One Mylavarapu Kondal Rao, is the person behind above litigation. Said

Kondal Rao was closely associated with defendant in his business and gained active confidence. Said Konidal Rao purchased land in Sy.No.208 of Khanapuram Haveli, from this defendant through an agreement of sale dt.13-02-2008 for a consideration of Rs1,12,50,000. He obtained a registered sale deed dt.12-11-2008 in favour of his mother in law one

Kummarikuntla Padmavathi and for his convenience an agreement of sale dt.13-10-2006, for Ac.1.00 gts of land in Sy.No.208.

ii) In said documents, said Kondal Rao got mentioned northern boundary as land of petitioner up to NSP main canal. Said boundary was got mentioned by Mylavarapu Kondal Rao, stating that, he can make use of land margin available between NSP canal on the basis of said description. As such, the petition schedule property is fictitious and physically no land as such exists. Said Kamarikuntla Padmavathi none other than mother in law of plaintiff. In fact extent of land of Ac.1.12 ½ gts, in schedule of property as per registered sale deed No.7635/2004

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dt.23-09-2004 not physically available within described boundaries.

Defendant delivered his original registered sale deeds (2 Nos) to

Kummarikuntla Padmavathi at the time of execution of registered document dt.12-11-2008, as she purchased major part of land of defendant. It is imaginary to allege that, defendant entered into oral agreement of sale with plaintiff and delivered possession of suit schedule land for consideration of Rs.2 lakhs. Capacity of plaintiff to pay Rs.2 lakhs is also denied.

iii) It is not out of place to mention that, plaintiff did not take any pains to cause legal notice demanding defendant to execute registered sale deed although for (7) years which is beyond any stretch of imagination. Self serving allegations in the plaint manifestly explains fraudulent claim of plaintiff. Under the guise of incorrect description of boundary mentioned in registered sale deed executed in favour of

Kummarikuntla Padmavathi, plaintiff in connivance with said Mylavarapu

Kondal Rao filed above suit malafidely to harass this defendant and to have wrongful gain and finally prayed to dismiss the suit with exemplary costs.

26. Basing on the aforesaid contentions of both sides, the following issues are framed by my predecessor-in-office or trial:

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1.Whether the oral agreement of sale between the parties is true, valid and binding on the defendant? 2.Whether the plaintiff is ready and willing to perform his part of contract? 3.Whether the plaintiff is entitled for specific performance of contract of agreement of sale by way of preliminary decree?

27. At the time of trial, P.Ws.1 to 3 were examined and Exs.A1 to

A4 are marked on behalf of plaintiff. On behalf of the defendants, D.W.1 was examined and Exs.B1 and B2 were marked.

28. After conclusion of trial in all the four suits, since the subject matter of the property involved is one and the same and as per the orders in Transfer O.P.No.747/2015 dated 03.03.2016, heard the arguments on both sides in all the suits to deliver common judgment, in order to avoid conflicting opinions and judgments. In addition to the oral arguments, learned counsel for the defendant No.1 in O.S.No.26/2012 also submitted written arguments, in support of his contentions.

ISSUE No.1 TO 4 AND ADDITIONAL ISSUE IN O.S.No.26 of 2016:

29.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

30. At the outset, it is pertinent to note here that deceased plaintiff

No.1 is none other than the son-in-law of Kummarikuntla Padmavathi,

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who is the defendant No.2 herein and Valli Kumari is the daughter-in-law of defendant No.2, who filed O.S.No.51/2016. For the reasons best known, defendant No.2 has remained exparte and did not choose to contest the matter.

31.In support of the aforesaid contentions, the plaintiff himself got examined as PW.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the plaint in toto. P.W.1 in his further examination in chief, marked Exs.A1 to A4. Subsequently, he died and hence his evidence and the marking of documents cannot be looked into.

32. Subsequently, plaintiff No.4 got examined himself as P.W.2, who requested to treat the evidence affidavit for examination in chief filed by P.W.1, wherein he reiterated the contents of the plaint in toto. PW.2 in his further examination in chief marked Exs.A1 to A5 documents, among them Ex.A1 is the agreement, Ex.A2 is the payment endorsement, Ex.A3 is the office copy of legal notice dated 10.1.2011 got issued by plaintiffs,

Ex.A4 is reply notice dated 28.1.2011 and Ex.A5 is reply notice dated 17.2.2011 got issued by plaintiffs to defendant No.1. Ex.A5 is the copy of rejoinder notice dated 17.02.2011 consisting of endorsement of counsel for the defendant. Ex.A6 is the photograph along with C.D. depicting the

Page No. 39 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

name board of Sri Venkateswara Marbles, Bye-pass Road, Khammam and Ex.A7 is the copy of registration details issued by Commercial Tax

Department were marked through D.W.3. During the course of cross examination of P.W.2, he had categorically admitted that there are cordial relations between his family and the family members of defendant No.1 and that his grandmother-defendant No.2 purchased the property from defendant No.1. He has further admitted that as and when the properties are purchased by his family and family of defendant No.2, they used to inform each other about the particulars of the properties to be purchased.

The land purchased by his father and the land purchased by his maternal grandmother are one and the same. Father of P.W.2 sustained monetary loss and his grandmother acted detrimental to the interest of his father.

He has further stated that his mother along with her brothers and maternal grandmother and maternal aunts have purchased Kinnerasani

Theatre under Ex.B1 sale deed, which speaks volumes about their knowledge for purchase of any property. Though he was cross examined at length, nothing adverse is elicited to disbelieve the testimony of P.W.2.

33. To rebut the evidence of P.Ws.1 and 2, D.Ws.1 to 4 are examined on behalf of defendants. Originally P.Y.L.Narasimha Rao, who is the son of defendant No.3, who filed his evidence affidavit for

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examination in chief, wherein he reiterated the contents of his written statement in toto. But instead, Singisala Venkateswar Rao appeared in the court for cross-examination as per the orders in I.A.No.1989/2018

dated 03.12.2018, wherein it was elicited that Seelam Venkateswarlu

purchased land in Sy.No.208 to an extent of Ac.1.02 ½ gts of land under registered document, but the actual land made available is only Ac.1.10 gts. He had admitted that Kondal Rao filed the present suit stating that he purchased Ac.1.12 ½ gts from Seelam Venkateswarlu under sale agreement. Through this witness, Exs.B2 to B6 are marked. The sale transaction under Ex.A8 sale deed was executed in favour of defendant

No.2 for an extent of Ac.1.00 gts of land is the same transaction, where

D.W.4 entered into sale agreement with plaintiff No.1 under Ex.A1 and the said extent alleged to had been sold in favour of defendant No.2, which is said to be on northern side of Ac.0.04 gts of land sold to defendant No.3 under Ex.B7 which is no way concerned to the land covered by Ex.A1 in favour of plaintiff. D.W.4 further stated that to avoid stamp duty charges for a lesser price, agreement of sale under Ex.B9

dated 13.10.2006 was executed. In Ex.B4, the northern boundary

mentioned as the land of Valli Kumari for obtaining permission as there was N.S.P. left branch canal to the boundary of the land. The extent of

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land was mentioned as Ac.1-12 gts based on the document of vendor and admitted that he sold Ac.0.04 gts to defendant No.3 under Ex.B7.

Through him, Exs.B2 to B6 are marked, among them, Ex.B2 is the certified copy of plaint with summons in O.S.No.200/2011 on the file of

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.50/2016),

Ex.B3 is the certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s Court, Khammam (re-numbered as O.S.No.51/2016),

Ex.B4 is the certified copy of plaint in O.S.No.223/2012 on the file of the

Senior Civil Judge’s Court, Khammam (renumbered as O.S.No.49/2016),

Ex.B5 is the written statement filed by Seelam Venkateswarlu in

O.S.No.259/2011 and Ex.B6 is the certified copy of registered sale deed

bearing document No.7635/2004 dated 23.09.2004 executed in favour of

Seelam Venkateswarlu. It is pertinent to note here that Ex.B1 attested copy of registered sale deed bearing document No.4686/2012 dated 12.04.2012 executed by P.Asha Kumari and others.

34. Though the evidence affidavit of D.W.2 was filed, but she did not turn up for her further chief examination and cross examination stating that she fell ill. Accordingly, the evidence affidavit of D.W.2 was eschewed.

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35.D.W.3, who happened to be the business man dealing with marble and granite slabs business under the name and style of Sri

Venkateswara Marbles & Granites filed his evidence affidavit for examination in chief, wherein he deposed that D.W.2 executed lease agreement dated 20.08.2010 in his favour for five years i.e., till 31.08.2015 and the same lease was extended orally. He further deposed that he paid Rs.20,000/- towards monthly rent and presently he is paying

Rs.25,000/- per month. He has further deposed that in the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land and that he and his workers went in aid of sons of D.W.2 to resist them. Exs.A6 and A7 are elicited through this witness.

36. Defendant No.1 got examined C.W.1 in O.S.No.49/2016, wherein it was elicited that Kummarikuntla Srinivasa Rao-D.W.2 is the son of defendant No.1 and husband of defendant No.2, who used to call him as Babai and their houses are located very nearer and got good relations with his family members. It is very pertinent to note here that

C.W.1 categorically deposed that he had Ac.0.04 gts of land which is situated on southern and eastern side of his land. He further admitted that, he sold his land to the plaintiff, which is in triangle shape. On confrontation of Ex.A1, agreement of sale, admitted his signatures and

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also the contents of the agreement and so also the endorsements dated 30.06.2007 and 20.07.2007 made on the rear side of the agreement. He has further admitted that while purchasing the land, he got it measured and then it was one acre 12 and half guntas, later a canal was found in which he lost his two guntas of land and hence he own 10 and half guntas of land. He lost his two guntas of land after his sale transaction with Podila Subhadra and that government has not given any compensation for two guntas of land. He admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu Kondal Rao, plaintiff in O.S.No.26/2012 for sale consideration of Rs.1,12,00,000/- and odd and that he executed sale deed in favour of K.Padmavathi, plaintiff in

O.S.No.50/2016 on 12.11.2008. Among three members mentioned

above, initially he sold the land to P.Subhadra and executed an agreement of sale dated 13.01.2006 in favour of K.Padmavathi for getting concession in stamp duty, the registration was kept pending. He did not enter into any transaction with Valli Kumari, plaintiff in O.S.No.51/2016, who filed suit against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts.

37. Further, C.W.1 admitted that he had good terms and that he executed agreement of sale dated 13.10.2006 under Ex.B4 in favour of

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Padmavathi for getting concession in stamp duty and the registration was kept pending. He categorically admitted that he did not enter into any sale transaction with Valli Kumari (defendant No.3) and clarified the location of suit schedule property sold to Podila Subhadra on southern side of land of Ac.1.00 gts sold to Padmavathi. Having paid huge amount of

Rs.97,12,500/- by 18.12.2008, either in plaint or in the evidence of P.W.1, the same do not disclose the reason for time taken for three years period for Ex.A1 agreement of sale was about to be completed. Ex.B8 sale deed was executed in favour of defendant No.2 on 12.11.2008 i.e., a day after

Rs.7,00,000/- part sale consideration paid on 11.11.2008, one of Ex.A2 part payment endorsements on reverse side of Ex.A1 agreement of sale.

More particularly execution of Ex.A1 sale deed correspond with Ex.A2 endorsement of part payment of Rs.10,00,000/- made on 18.12.2008, establish and conclude sale transaction under Ex.A1 agreement and part payment made under Ex.A3 by execution of Ex.B8-sale deed for Ac.1.00 gts in favour of defendant No.3. Thus, defendant No.2 left suit claim in this suit in O.S.No.26/2012 uncontested, while she is seriously contesting the suit for specific performance of suit schedule to an extent of Ac.0.04 gts and in O.S.No.50/2016 for perpetual injunction for same extent of

Ac.0.04 gts of land, manifests that, in collusion with the plaintiffs and

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defendant No.2 are hand in glove with each other. Certified copy of partnership deed dated 15.02.2013 (Ex.B10) pertaining to M/s Sai

Krishna Constructions reveal that the family members of defendant No.2, plaintiffs 2, 3 and 6 are the partners in the said firm and partnership deed was attested by deceased plaintiff No.1. Ex.B10 reveal collusion among the plaintiffs and family members of defendant No.2 to harass the plaintiffs to have wrongful gain. Having regard to the facts and circumstances of the case and keeping in view the voluminous oral and documentary evidence on both sides, the agreement of sale under Ex.A1 between the parties cannot be relied and acted upon the parties.

38. Learned counsel for defendants 3 to 9 sought to rely on the following decisions in support of their respective contentions.

1.Judgment of Hon’ble Supreme Court in Civil Appeal No.147-148 of 2021 decided on 05.10.2020 between Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha.

2.Judgment of Hon’ble Supreme Court in Civil Appeal No.4703- 2022 (Arising out of SLP (C) No.19463 of 2018) decided on 12.07.2022 between U.N.Krishna Murthy (Since Deceased) Thr. Lrs. Vs. A.M.Krishna Murthy.

By relying on the above judgments, the learned counsel for the defendants 3 to 9 contended that since the plaintiffs have not shown the essential ingredients of ready and willingness, which relates to the conduct of the plaintiffs and they have not shown any bonafides by show

Page No. 46 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of any cogent and convincing evidence to consider the relief of specific performance of contract.

39. The plea of limitation referred to was that the averment of readiness and willingness required by Section 16 (c) of the Act was part of the cause of action for the suit and therefore the suit itself was liable to be dismissed as barred by limitation. It was this plea raised by the defendant that was left open for consideration at the trial of the suit.

Subsequently, the original plaintiff Kondal Rao died and his legal representatives were impleaded as supplemental plaintiffs in the suit. The averment of readiness and willingness on the part of the plaintiffs was part of the cause of action for the suit. The contention raised by the defendants is that a recital regarding readiness and willingness of the plaintiffs to perform the essential terms of the contract is part of the cause of action for the suit in view of the provisions contained in Section 16 (c) of the Act and the prescriptions in forms 47 and 48 of Appendix A to the

C.P.C. Section 16 (c) provides that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms, the performance of which has been prevented or waived by

Page No. 47 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

the defendant. Forms 47 and 48 of Appendix A to the C.P.C. work out this requirement with appropriate recitals in model plaints. The defendants’ contention is that this recital goes to the root of the matter, and unless it finds a place in the plaint within the period of limitation prescribed by law, the entire suit has to fail. Admittedly, the part payments made by 13.02.2008 and the suit was presented on 16.12.2011. Added to it, the plaintiffs failed to file any documentary proof in support of their claim that they deposited the balance amount in any bank and thereby ready and willing to perform their part of contract according to the recitals of the agreement of sale. Having regard to the oral and documentary evidence adduced by both sides, there is a dispute between the parties regarding the extent of land alleged to have been sold and therefore this court is of the considered view that the relief of specific performance of contract cannot be concluded, but at the most the plaintiffs are entitled to the alternative relief for refund of the earnest money under the additional issue. Thus, the plaintiffs are not entitled to the relief of specific performance of contract and for declaration of the registered sale deed bearing document No.P323/2008 dated 12.11.2008 as null and void and not binding on the plaintiffs, except the alternative relief under additional issue directing the defendants No.1 to refund the earnest money of

Page No. 48 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Rs.97,12,500/- together with interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of suit, till the date of realization on Rs.97,12,500/-. Issues No.1 to 4 and additional issue are answered accordingly.

50. Heard both sides. Plaintiffs and defendant No.2 and 3 also filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.49 of 2016:

51.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

52. At the outset, it is pertinent to note here that except the plaintiffs in this suit, all other parties in the three remaining suits are related and the subject matter in all belongs to one and the same family.

Kummarikuntla Padmavathi-defendant No.2 herein filed O.S.No.590/2016 for perpetual injunction against plaintiffs 2 to 7 herein and one Bandi

Sekhar in respect of land to an extent of Ac.1.00 gts in Sy.No.208/I, O, alleged to have been purchased from Seelam Venkateswarlu-defendant

No.1 herein. Subsequently, Kummarikuntla Valli Kumari-defendant No.3 herein filed O.S.No.51/2016 for specific performance against Seelam

Venkateswarlu in respect of Ac.0.12 ½ gts in Sy.No.208/A alleged to have

Page No. 49 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

been purchased from Seelam Venkateswarlu-defendant No.1 herein, basing on oral agreement of sale dated 24.09.2004. Plaintiff No.1 filed the above suit for specific performance of and for perpetual injunction, against Seelam Venkateswarlu-defendant No.1, in respect of Ac.0.04 gts in triangular piece of land out of Sy.No.208 of Khanapuram Haveli, through Ex.A1 agreement of sale dated 02.04.2007 for consideration of

Rs.2,00,000/-. Plaintiff No.1 paid Rs.50,000/- on 02.04.2007, Rs.50,000/- on 30.06.2007 and Rs.1,00,000/- on 20.07.2007 to defendant No.1 towards sale consideration and possession was also delivered on 20.07.2007 and to the said effect, defendant No.1 also endorsed on the reverse of Ex.A1 agreement of sale dated 02.04.2007.

53. In order to prove the case, P.W.1 was examined on behalf of plaintiff, who fled his evidence affidavit for examination in chief, wherein he reiterated the contents of the plaint in toto. During his further examination in chief, marked Exs.A1 to A8 on his behalf. Apart from

P.W.1, plaintiffs also examined P.Ws.2 and 3, who filed their evidence affidavits for examination in chief, wherein they supported the evidence of

P.W.1 in all respects.

54. On behalf of defendants, D.W.1 filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written

Page No. 50 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

statement chief in toto. During his further examination in chief, got marked Exs.B1 to B3 to B7. Apart from the evidence of D.W.1, the defendants also examined D.W.2 on their behalf. During the cross examination of D.W.1, it was elicited that she, D.W.2 and his family members and her both sons live together and her daughter Aruna is wife of Mylavarapu Kondal Rao. She has further admitted that her son-in-law

Mylavarapu Kondal Rao had passed away about four years back i.e., from 05.03.2021. During the life time of late Kondala Rao, her daughter and her family members are residents of Gandhi Chowk, which is nearer to their residence and there are cordial relations among their family and the family members of her son-in-law M.Kondal Rao and the same relationship is continued. It is pertinent to note here that C.W.1 categorically admitted during his cross examination that he sold away the suit schedule property in favour of deceased Plaintiff and the same is evident from Ex.A1 and the part payments made on the reverse of the agreement of sale i.e., Ex.B3.

55. Apart from the above evidence, defendant No.1 is examined as C.W.1, who stated that he is the defendant No.1 in the above suit and did not file any written statement. He has further stated that he did not receive any summons and notices from the court to give evidence. He

Page No. 51 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

has further stated that he knows one Kummarikuntla Srinivasa Rao for more than 10 years. Their houses are located very nearer and that said

Srinivasa Rao used to call him as Babai. He has further stated that he own total extent of Ac.1.12 ½ gts in Sy.No.208. While purchasing the land, he got it measured and then it was Ac.1.12 ½ gts, later a canal was found in which he lost his two guntas of land after his sale transaction with Podila Subhadra. He has further deposed that government has not given any compensation for two guntas of land. He has admitted that he executed an agreement of sale dated 13.02.2008 in favour of Mylavarapu

Kondal Rao for sale consideration of Rs.1,12,00,000/- and odd. He has further admitted that he executed sale deed in favour of K.Padmavathi on 12.11.2008 for an extent of Ac.1.00 gts and the same was registered on 18.12.2008. Among three members mentioned above, initially he sold to

P.Subhadra and he executed an agreement of sale dated 13.01.2006 in favour of Padmavathi for getting concession in stamp duty and the registration was kept pending. He has further stated that he did not enter into any sale transaction with Valli Kumari. He has further admitted that

Valli Kumari has filed O.S.No.51/2016 against him alleging that he entered into a sale transaction with her for an extent of Ac.0.12 gts. He had denied other suggestions put to him. When this witness was

Page No. 52 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

confronted with Ex.A1 agreement of sale, he admitted his signature and also endorsements and contents on the reverse of the agreement of sale.

By the evidence of this witness, it is crystal clear that he alienated an extent of Ac.0.04 gts in favour of deceased plaintiff No.1.

56. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A9 and the evidence of defendant No.1 as C.W.1, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for specific performance of contract and consequential relief of perpetual injunction.

Issues No.1 to 4 are answered accordingly.

57. Heard both sides. Both sides filed written arguments.

ISSUE No.1 TO 4 IN O.S.No.50 of 2016:

58.Issue Nos.1 to 4 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

59. In order prove the suit claim, plaintiff has examined herself as

P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A3 on her behalf, among them Ex.A1 is the certified copy of registered sale deed bearing document No.4310/2012 dated 12.11.2008, Ex.A2 is the proceedings issued by the District Registrar, Khammam vide

Page No. 53 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

No.MV/47/A/88/20009 and Ex.A3 is the original agreement of sale dated 13.10.2006.

60. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she expressed ignorance about the measurements and her son verified the title documents. She stated that even by the year, 2006, she was the resident of Khammam and she is not having any relatives at Suryapet. She expressed her ignorance about purchase of stamp paper and drafting of sale agreement was purchased at Suryapet.

She denied the suggestions that Ex.A3 agreement of sale is no way relating to the sale transaction and land of Subhadra was in Sy.No.208.

She has further stated that she did not verify as to whether any document was in existence showing the measurements and boundaries of the schedule property in which she is in possession of the land and she can identify the suit schedule property. P.W.1 stated that land of Subhadra was leased out to Marble shop up to her southern boundary and categorically admitted that Subhadra leased out Ac.1.08 ¾ gts of land to

Marble shop up to the stone poles. She stated that her daughter in law purchased Ac.0.12 ½ gts of land and since the date of her purchase and even prior to that the land is vacant. She admitted that she is having

Page No. 54 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

cordial relationship with her son-in-law and there are no differences and disputes in between her family and the family members of her daughter and that her son-in-law filed a suit before the court against Seelam

Venkateswarlu stating that he also purchased the same property. She is not contesting the said suit. She expressed that she does not know whether her son in law purchased the property by paying sale consideration and that she purchased the property for Rs.12,60,000/-.

She expressed ignorance as to whether the value of the land is one crore or above. She denied the suggestion that she and her daughter-in-law only to grab the property of Subhadra got created a sale agreement with ante date, so also other suggestions.

61. P.W.2-Kummarikuntla Sreenivasa Rao stated that he is the son behind the litigation related to said four suits. He has further stated that he purchased Ac.0.12 ½ gts of land for his wife Valli Kumari in the year 2004 and the property was got measured prior to registration, but the northern boundary of the property was purchased by his wife, NSP canal was not confirmed with NSP authorities and not confirmed the boundaries of survey numbers of Bikshamaiah by appointing government surveyor. He admitted that as per the certificate given by M.R.O. in

Dis.No.B/9957/2004 the extent mentioned as Ac.1.10 gts, which is part of

Page No. 55 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.A1 sale deed. He has further admitted that he did not file any document with regard to taking of measurements of land with confirmation of his vendor. Except the registered sale deed-Ex.A1 executed by the vendor in favour of his mother, he had no documentary proof to show that his mother is in possession of the property since the date of purchase and that he did not file any document to show that his vendor handed over possession of Ac.0.12 ½ gts of land of his wife.

62. P.W.3-Mahender Singh Bharadwaj, who is one of the attestors to Ex.A1 sale deed supported the evidence of P.Ws.1 and 2. During the course of cross examination, he denied the suggestions such as he was not present at the time of transaction dated 13.10.2006 and no transaction took place between Seelam Venkateswarlu and and the plaintiff.

63. In support of the contentions of the defendants, the defendant

No.1 himself got examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein, he reiterated the contents of the written statement in toto. D.W.1 in his further examination in chief marked Exs.B1 to

B5 documents, among them, Ex.B1 is the sale agreement dated 02.04.2007,

Ex.B2 is the endorsement on reverse of the agreement of sale, Ex.B3 are two photographs with C.D., Ex.B4 is the receipt issued by the photographer and

Page No. 56 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B5 are the three photographs.

64. During the course of cross examination, D.W.1 admitted that he did not file any document to show that he is having land to an extent of

Ac.1.04 ¾ gts in Sy.No.206 and 207. He has further admitted that some of the land in Sy.No.206 and 207 was acquired for laying bypass road, after that the remaining land belongs to him. Total extent of land in

Sy.No.206 and 207 is Ac.0.35 gts and Ac.0.38 gts and that his land is towards northern side of bypass road, which is a triangular piece of bit and that the eastern side boundary is zero. He denied the suggestion that towards northern side of his property, the property of Padmavathi is situated, which he denied. He further stated that there is land of Seelam

Venkateswarlu towards his northern side and he does not know who purchased the same. The plaintiff filed suit stating that he tried to encroach into the land of Padmavathi.

65. The defendants also examined D.W.2, who filed his affidavit for examination in chief, wherein he stated that himself and his brother-in- law Cheepu Veeraiah have been dealing with marble and granite slabs business in the name and style of Sri Venkateswara Marbles and

Granites since 2010 in Ac.1.08 ¾ gts of land belong to Podila Subhadra, on lease and that stone planks were erected on boundaries for the said

Page No. 57 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

land. An agreement of lease dated 20.08.2010 was executed by

Smt.Subhadra and her sons in their favour, for a period of five years till 31.08.2015. Later, his lease was extended orally and that initially, they paid Rs.20,000/- towards monthly rent and at present they are paying

Rs.25,000/- pr month. During the year 2011 some third persons tried to remove the stone planks erected on the northern boundary of land, then himself and their workers went in aid of sons of Smt.P.Subhadra to resist them. During the course of cross examination, Ex.A4-photograph and

Ex.A5-copy of registration details issued by the Commercial tax department. D.W.2 admitted that he mentioned the location of shop in

Sy.No.206 and 207 in Ex.A5.

66. As seen from the evidence of D.W.2, he alleged to have been carrying on his business in Sy.Nos.206 and 207 even as per Ex.A5 also, whereas the claim of the plaintiff in respect of land measuring to an extent of Ac.0.20 gts in Sy.No.208/I and Ac.0.20 gts in Sy.No.208/O, total measuring Ac.1.00 gts in single compact block. Thus, the evidence of

D.Ws.1 and 2 is contradictory to each other and they are uncertain about their land. Therefore the inconsistency in the evidence of D.Ws.1 and 2 and the survey numbers as spoken to by D.W.1 and D.W.2 differs from that of P.Ws.1 to 3. Admittedly, Exs.B1 to B5 reveal running of Sri

Page No. 58 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Venkateswara Marbles and Granites, Khammam. These Exs.B1 to B5 are the certified copies and the originals of which are filed in

O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam.

These documents do not reflect conducting of any marbles and granites business in the land being claimed by the defendants, except a nominal board depicting as Sri Venkateswara Marbles and a Mini Lorry kept underneath the board, whereas Ex.A1 is the registered sale deed bearing document No.4310 dated 12.11.2008, Ex.A2 is the proceedings in

No.M.V/47-A/88/2009 dated 30.11.2010 issued by the District Registrar of

Assurances, Khammam, wherein after due verification of the land, the deficit fee of Rs.4,85,350/- has been directed to be collected from the plaintiff under Section 48 of Indian Stamp Act, 1899, within 15 days from 30.11.2020. Ex.A3 is the agreement of sale in respect of the suit schedule property. Therefore, the oral and documentary evidence let in by the defendants is contradicting and varying from that of the suit schedule property.

67. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5, it is crystal clear that plaintiffs have proved the suit claim by adducing oral and documentary evidence and hence they are entitled for perpetual injunction as the plaintiffs proved title and it is

Page No. 59 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

settled law possession follows title. Issues No.1 to 4 are answered accordingly.

68. Heard both sides. Both sides also filed written arguments.

ISSUE No.1 TO 3 IN O.S.No.51 of 2016:

69.Issue Nos.1 to 3 are interrelated to each other which arose out of one and the same subject matter between the parties to the suit and hence it is necessary to answer all the four issues simultaneously.

70. In order to prove the suit claim, plaintiff has examined herself as P.W.1 and P.Ws.2 and 3 on her behalf and got marked Exs.A1 to A4 on her behalf, among them Ex.A1 is the certified copy of registered agreement of sale-cum-G.P.A. bearing document No.5657/2001 dated 09.10.2011, Ex.A2 is the original registered sale deed bearing document

No.7635 dated 23.09.2004 and Ex.A3 is the certified copy of agreement of sale dated 13.10.2006 executed by defendant.

71. P.W.1 filed her evidence affidavit for examination in chief, wherein she had reiterated the averments of the plaint in toto. During cross examination, she admitted that she did not issue any notice till filing of the suit demanding the defendant to execute the registered sale deed in respect of the suit schedule property in pursuance of the oral agreement of sale dated 24.09.2004.

Page No. 60 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

72. P.Ws.2 and 3 are alleged to be one of the mediators to the sale transaction between the plaintiff and defendant.

73. As seen from Exs.A1 to A4, the land within the boundaries specified in the agreement of sale and the registered sale deed differs with each other.

74. Coming to the evidence on behalf of the defendant, he himself examined as D.W.1, who filed his evidence affidavit for examination in chief, wherein he reiterated the contents of his written statmenet. During his further chief examination, he got marked Exs.B1 and B2 on his behalf, among them, Ex.B1 is the certified copy of agreement of sale dated 13.02.2008 between Mylavarpu Kondal Rao and the defendant for a total consideration of Rs.1,12,50,000/-. Ex.B2 is the copy of plaint in

O.S.No.26/2012 on the file of this Hon’ble Court, wherein Mylavarapu

Kondal Rao filed the suit for specific performance of contract and after his demise, his legal representatives are prosecuting the case. But as per

Ex.A3, the ale consideration was Rs.12,60,000/-. As seen from both

Ex.A3 and Ex.B1, there is lot of difference in the sale consideration.

Vallikumari is no other than wife of Kummarakuntla Srinivasa Rao. Mother of Kummarakuntla Srinivasa Rao namely Padmavathi, filed suit in

O.S.No.50/2016 basing on the alleged registered sale deed bearing

Page No. 61 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

document No.4310, dated 12.11.2008 executed in favour of

K.Padmavathi by the defendant herein, whereas the agreement of sale

dated 24.09.2004 alleged to had been executed by defendant herein.

75. It is not out of place to mention here that plaintiffs in

O.S.No.26/2012, O.S.No.49/2016, O.S.No.50/2016 and this suit are

related and residing together, as admitted by them. Even assuming for a while, when the mother-in-law K.Padmavathi had filed the suit in

O.S.No.50/2016 basing on the alleged registered sale deed executed in

her favour by this defendant way back in the year, 2008 itself, this plaintiff being daughter-in-law to K.Padmavathi, who is alleging that this defendant had executed agreement of sale way back in the year 2004 itself i.e., 24.09.2004 i.e., even prior to the transaction between her mother-in-law, K.Padmavathi and this defendant herein was concluded by 12.11.2008 itself and the plaintiff keeping silent for all these days without issuing any legal notice to the defendant till filing of the suit for more than seven years, when herself, K.Padmavathi, K.Srinivasa Rao and other family members are residing together appears to be dubitable. Further, the plaintiff is relying on oral contract 24.09.2004 and the evidence adduced on behalf of the plaintiff basing on the alleged oral contract appears to be vague and baseless claim. It is well established principles

Page No. 62 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

of law that the suit for specific performance of contract on oral contract is not maintainable unless and until it is proved because heavy burden lies on the plaintiffs that too without any legal notice for more than 7 years, when the other transactions were alleged to be concluded in the name of her other family members. More-over, the plaintiff has failed to show her readiness and willingness to perform her part of contract in pursuance of the so-called oral contract. The assertion made by the plaintiff that

Exs.A1 to A3 handed over by her mother-in-law and hence they entered into oral contract in respect of the suit schedule property appears to be dubitable and not believable.

76. Thus, from the above evidence on record i.e., P.Ws.1 to 3 coupled with Exs.A1 to A5 and the evidence of D.W.1 coupled with

Exs.B1 and B2, it is crystal clear that plaintiff failed to prove the suit claim based on oral agreement and hence she is not entitled for specific performance of contract. Issues No.1 to 4 are answered accordingly.

ISSUE No.5 in O.S.No.26 of 2012:

77. In view of my discussion on issues No.1 to 4 and additional issue, the suit of the plaintiffs is decreed partly to the extent of refund of earnest money and the rest of the suit claim is liable to be dismissed.

Page No. 63 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

ISSUE No.5 O.S.No. 49 OF 2016:

78. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is decreed as prayed for.

ISSUE No.5 in O.S.No.50 of 2016:

79. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be decreed as prayed for granting perpetual injunction.

ISSUE No.5 in O.S.No.51 of 2012:

80. In view of my discussion on issues No.1 to 4, the suit of the plaintiff is liable to be dismissed, but without costs.

RESULT IN O.S.No.26/2012:

In the result, the suit is decreed partly with costs. The defendant

No.1 is directed to pay an amount of Rs.97,12,500/- to the plaintiff with subsequent interest @ 12% P.A. from the date of suit, till the date of decree and thereafter @ 6% P.A. from the date of decree, till the date of realization on Rs.97,12,500/-. The rest of the suit claim is dismissed, but in the circumstances without costs.

RESULT IN O.S.No.49/2016:

In the result, the suit is decreed with costs. The defendant No.1 is hereby directed to execute registered sale deed within two months from the

Page No. 64 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

date of this judgment and in case defendant No.1 failed to execute the registered sale deed, the plaintiff is at liberty to seek relief through process of court. Consequently, the plaintiff is granted perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.50/2016:

In the result, the suit is decreed with costs granting perpetual injunction restraining the defendants, their men, agents and all other persons claiming through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, in any manner.

RESULT IN O.S.No.51/2016:

In the result, the suit is dismissed without costs.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the open Court, this the 18th day of November,

2022.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

-APPENDIX OF EVIDENCE-

Witnesses examined for Plaintiffs in O.S.No.26 of 2012:

P.W.1 : M.Kondal Rao. P.W.2 : M.Sravan Kumar

Page No. 65 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : P.Subhadra (Eschewed) D.W.3 : B.Chinthaiah D.W.4 : S.Venkateswarlu

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 13.02.2008. Ex.A2 : Office copy of legal notice dated 10.01.2011. Ex.A3 : Reply notice dated 28.01.2011. Ex.A4 : Reply notice dated 17.02.2011. Ex.A5 : Office copy of rejoinder notice dated 17.02.2011. Ex.A6 : Photograph with C.D. dated 30.11.2018 showing the name board styled as Sri Venkateswara Marbles. Ex.A7 : Copy of registration details issued by Commercial Taxes Department.

For Defendants:

Ex.B1 : Certified copy of plaint along with summons in O.S.No.200/2011 on the file of Senior Civil Judge’s Court, Khammam. Ex.B2 : Certified copy of plaint in O.S.No.259/2011 on the file of the

Senior Civil Judge’s court, Khammam.

Ex.B3 : Certified copy of plaint in O.S.No.223/2011 on the file of the

Senior Civil Judge’s Court, Khammam.

Ex.B4 : Certified copy of written statement filed by Seelam Venkateswarlu. Ex.B5 : Certified copy of the registered sale deed bearing document No.7635/2011 dated 23.09.2004. Ex.B6 : Photograph depicting the shop. Ex.B7 : True copy of agreement of sale dated 02.04.2007 Ex.B8 : Certified copy of registered sale deed bearing document No.4310/2012 (P.323/2008) executed by defendant No.1 Ex.B9 : Certified copy of agreement of sale dated 13.10.2006 executed by defendant No.1.

Page No. 66 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Witnesses examined for Plaintiffs in O.S.No.49 of 2016:

P.W.1 : P.Yadagiri Laxminarasimha Rao. P.W.2 : P.Subhadra P.W.3 : B.Chinthaiah

C.W.1 : Seelam Venkateswarlu

For Defendants:

D.W.1 : K.Padmavathi D.W.2 : K.Srinivasa Rao

Exhibits Marked for

Plaintiffs:

Ex.A1 : Agreement of sale dated 02.04.2007 executed by defendant No.1 Ex.A2 : Office copy of legal notice dated 20.09.2011. Ex.A3 : Postal acknowledgment Ex.A4 : Served copy of plaint in O.S.No.50/2016 Ex.A5 : Certified copy of order in I.A.No.843/2011 in O.S.No.200/2011 on the file of the Senior Civil Judge’s Court, Khammam Ex.A6 : Certified copy of plaint in O.S.No.51/2016. Ex.A7 : Certified copy of registered sale deed bearing document No.7635/2004 dated 30.09.2004. Ex.A8 : Certified copy of sale deed bearing document No.P-323/2008

dated 12.11.2008.

For Defendants:

Ex.B1 : Photograph depicting the shop Ex.B2 : Certified copy of registration details issued by Commercial Taxes Department. Ex.B3 : Certified copy of registered sale deed bearing document dated 12.11.2008. Ex.B4 : Certified copy of agreement of sale dated 13.10.2006 Ex.B5 : Certified copy of proceedings of the D.R.A., Khammam dated 30.11.2010. Ex.B6 : Letter dated 11.01.2019 addressed by the Sales Tax Office, Khammam

Page No. 67 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Ex.B7 : VAT certificate dated 19.08.2011.

Witnesses examined for Plaintiffs in O.S.No.50 of 2016:

P.W.1 : K.Padmavathi. P.W.2 : K.Srinivasa Rao P.W.3 : Mahender Singh Bharadwaj

For Defendants:

D.W.1 : P.Yadagiri Laxminarasimha Rao D.W.2 : B.Chinthaiah

Exhibits Marked for

Plaintiffs:

Ex.A1 :Certified copy of registered sale deed bearing documetn No.4310/2012, dated 12.11.2008. Ex.A2 :Proceedings issued by the District Registrar, Khammam vide MV/47/A/88/2009 Ex.A3 : Original agreement of sale dated 13.10.2006.

For Defendants:

Ex.B1 : Certified copy of sale agreement dated 02.04.2007 Ex.B2 : Endorsement on the reverse of first page of Ex.B1 dated 20.07.2007. Ex.B3 : Two photographs with C.D. Ex.B4 : Receipt issued by Photographer. Ex.B5 : Three positive photographs

Witnesses examined for Plaintiffs in O.S.No.51 of 2016:

P.W.1 : K.Valli Kumari. P.W.2 : Mahendrasingh Bharadwaj P.W.3 : M.Laxmikantha Rao

For Defendants:

D.W.1 : S.Venkateswarlu

Page No. 68 of total 68 pages Judgment in O.S.No.26-12, Dt.18.11.2022.

Exhibits Marked for

Plaintiffs:

Ex.A1 : Original registered agreement of sale-cum-G.P.A. vide document No.5657/2001, dated 09.10.2001. Ex.A2 : Original registered sale deed bearing document No.7635/2004,

dated 23.09.2004.

Ex.A3 : Certified copy of agreement of sale dated 13.10.2006. Ex.A4 : Certified copy of registered sale deed bearing document No.4310/2008, dated 12.11.2008.

For Defendants:

Ex.B1 : Certified copy of unregistered agrement of sale deed dated 13.02.2008. Ex.B2 : Certified copy of neat copy of plaint in O.S.No.26/2012.

Sd/-xxx

PRINCIPAL DISTRICT JUDGE

KHAMMAM.

Compared by:

BEFORE THE CHAIRMAN, MOTOR ACCIDENTS CLAIMS TRIBUNAL-

CUM-II ADDITIONAL DISTRICT JUDGE AT: KHAMMAM

Dated this the 12th day of April, 2023

Present:Sri Dr. T.Srinivasa Rao, Chairman, Motor Accidents Claims Tribunal- cum-Prl. District Judge, Khammam. FAC. Chairman, Motor Accidents Claims Tribunal-cum-IIAddlitionalDistrict

Judge, Khammam.

MVOP No. 95 of 2021

Between:

Kothapally Raghavulu, S/o. Bikshamaiah @ Pedda Baxmaiah, Age: 50 years, Occu: Porter, R/o. H.No.4-9- 255, Prakash nagar, Khammam city and District.

…Claim Petitioner

and

1.Tejavath Hussain, S/o. Vasram, Age: 39 years, Crane Operator Bearing No.TS-04-EF-7127, R/o. Ramakunta Thanda, H/o. Vennaram village, Dornakal Mandal, Mahaboobabad District.

2.Pokala Venkatanarayana, S/o. Veladri, Age: Major, Occu: Owner of Proclane bearing No.TS-04-EE-7127, R/o. H.No.2-24/1, Khanapuram village and Post, Mudigonda Mandal, Khammam District.

3. The Cholamandalam General Insurance Company Limited, Hyderabad Branch, D.No.1-2-73/2, 1-2-63 to 64, No.302, 3rd Floor SR Arcade, Park Lane, Hyderabad City Telangana State. ….Respondents (Policy No.3380/01475695/000/01, valid from 03.11.2019 to 02.11.2020)

This petition is coming before me on 10.04.2023 for final hearing, in the presence of Sri O. Seshagiri Rao, Advocate for the petitioner; and

Page 2 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 of Sri P. Vidya Sagar, Advocate for the 2 nd respondent; and of Sri Kothapalli Rama Rao, Advocate for the 3 rd respondent; and respondent No.1 remained exparte; upon perusal of the material papers on record and having stood over for consideration till this day, this Tribunal delivered the following:

:: O R D E R ::

1.This is a petition filed by the petitioner under Section 166 of Motor

Vehicles Act, 1988 claiming compensation to a tune of Rs.4,00,000/- (Rupees Four Lakhs only) to the petitioner for the injuries sustained by him in an accident, with costs and interest @ 18% per annum from the date of accident till the date of realization.

2. The averments in the petition in nutshell are, as follows:

(i)On 14.01.2020 at about 6.00 hours, the claim petitioner started from his house at Prakash Nagar, Khammam city by pushing his four wheeler rickshaw (cart) by pouring Rangoli colors on his cart for selling from his house to Mahaboobabad road side when he came to

Ramakoti Thanda in front of DARE Engineering College, the driver of the mobile Crane bearing No.TS-04-EE-7127 came from Khammam side to

Mahaboobabad drove it in a rash and negligent manner and dashed behind the petitioner. Due to which, he fell down on the road received bleeding injuries on his legs, head, ribs, grievous and simple injuries and also pushing four wheeler Rickshaw Rangoli colours are also damaged in the said accident and same was occurred due to rash and negligent

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MVOP.No.95 of 2021 order dated 12.04.2023 driving of driver of mobile crane bearing No.TS-04-EE-7127. He did not take minimum care and caution while driving the crime vehicle, thereby caused the accident. The petitioner sustained injuries 1) Fracture of both bones of right leg, multiple fracture in below knee, 2) Fracture of Clavicle both side, 3) Fracture of right shoulder, Fracture of right side Ribs, lacerated injuries to both legs, 5) Abrasion on the left hand, 6) Abrasion on the fore head, 7) abrasion on the left knee and multiple injuries all over the body. Immediately after the accident, he shifted to Government

Head Quarters Hospital, Khammam and took treatment as inpatient.

During course of treatment operation was conducted his right leg and inserted nail plates Ilizerow treatment was done and taking bed rest for period of 6 months. Again he admitted fro setting of ilizrov second time also admitted for period of one week in the same hospital clinical tests are also conducted, he treated as outpatient as he need daily checkup for which he spent Rs.2,00,000/- towards medical and other hospital charges and he advised bed rest of a period of 12 months and he also need further operation to remove nail plates and ilizrov fittings and also he ill spend am amount of Rs.50,000/- for further operation and ancillary expenses.

(ii)On receipt of complaint, the police Khammam Rural registered the case in Crime No.18/2020 under Section 337 of IPC,

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MVOP.No.95 of 2021 order dated 12.04.2023 against the driver of crime vehicle.

(iii)The petitioner was aged about 50 years and he was hale and healthy, as on the date of accident and he is marking the porter and also seasonal business by profession and that he used to earn

Rs.10,000/- per month. Due the accident, he suffered lot of pain and mental agony on account of injuries sustained by him in the aforesaid accident. Due to injuries he unable to sit and stand walk without help of the attendant he cannot to do his works daily actitivies as usually and also feeling drowsiness, thereby is not doing any work much less porter.

He lost his earning power and capacity. He sustained more than 100% disability. In view of the above facts and circumstances, the petitioner is claiming compensation of Rs.4,00,000/- per annum against the respondents.

(iv)The 1st respondent is driver of crime vehicle, 2nd respondent is the owner and the 3rd respondent Insurer of crime vehicle-Mobile crane bearing No.TS-04-EE-7127 and as such, all the respondents are jointly and severally liable to pay compensation, to the petitioner. Hence, the petition.

3. Despite service of notice, the respondent No.1 failed to appear

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MVOP.No.95 of 2021 order dated 12.04.2023

before this Tribunal and as such on 23.02.2021, he was set exparte.

Since then, he did not turn up, before this Tribunal, to take steps to file an application to set aside exparte order.

4. On receipt of notice, the 2nd respondent has appeared and filed counter contending inter alia that he denied the mode and manner of the accident said to have been mentioned in the claim-petition, took place on 14.01.2020 at Ramakoti Thanda, in front of DARE Engineering

College at abut 6.00 hours, the claim petitioner sustained injuries due to the rash and negligent driving the driver of the crime vehicle and dashed behind the petitioner. Due to which he fell down on the road and received bleeding injuries and took treatment and he incurred an amount of Rs.2,00,000/- towards medical and other hospital charges and also he will spend an amount of Rs.50,000/- for his further operation and ancillary expenses etc., are imaginary invented for the purpose of extract money by mentioning in different heads claiming compensation of Rs.4,00,000/- are utterly false and incorrect. There is no cause of action ti file the present case. There is no negligent on the part of the respondent No.1.

He is having competent driving license to drive the crime vehicle. The respondent No.1 and 2 are no way concerned with the alleged accident.

The claim of compensation of Rs.3,00,000/- claimed by the petitioner under different heads, which is highly excessive and exaggerated. .

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MVOP.No.95 of 2021 order dated 12.04.2023

Hence, prayed to dismiss the petition against the respondent No.2.

5. On receipt of notice, the 2nd respondent has appeared and filed counter contending inter alia that the petition is liable to be dismissed in limine. It is denied the manner of accident as narrated in the petition. It is submitted that the driver of the crime vehicle proclane bearing No.TS-04-EE-7127 is not hodling valid and effeictive driving licnes at the time of accident and further was not qualified for holding or obtaining such driving license and furtehr has not satified the requirements of the rule No.3 of the Central Motor Vehcile Rules, 1989.

The respondent No.1 willfully knowningly has handed over the the possession of the vehicle to the said driver, who has not possessed valide and effecitive drining lincense as on the date of acciden. The respondent No.2 submits taht as per Section 134 (c) of MV. Act, it mandatory duty of the insured/respondent No.2 herein to furnish the pariculars of policy, date, time and place of accident, particulars of injured and naem of the driver and particulars of driving license. But the respondent No.1 has not complied with the statutory demand. Hence, this respondent is not liable to any compensation and the case is liable to be dismissed agaisnt this respondent. He further submitted that as per

Section 158(6) of MV Act, 1988, it is mandatory duty of the concerned

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MVOP.No.95 of 2021 order dated 12.04.2023 police station to forward all the relevant documents to the concerned insurere within 30 days from the date of the information, but the police

Khammam Rual failed to forward the documents and not compled with the statutory demand. The claim of compensation of Rs.4,00,000/- is highly exaggerated. The rate of interest as claimed by the petitioner is contrary to Section 3 of Interest Act, 1978. Hence, prayed to dismiss the petition against the 3rd respondent, with exemplary costs.

6. Basing on the pleadings of both sides the following issues have been settled for trial:

1.

Whether the accident occurred on 14.01.2020 at

about 06.00 hours due to rash and negligent

driving by the driver of crime vehicle i.e., mobile

Crane bearing registration No.TS-EE-7127?

2.

Whether the petitioner is entitled for

compensation? If so, to what amount and and from

which of the respondents? 3. To what relief?

7.During the course of trial, on behalf of the petitioner, P.Ws-1 and PW-2 were examined and A-1 to A-11 were exhibited. On behalf of the Respondents No.2 and 3, no witnesses were examined and Ex.B.1 is marked with consent. This Tribunal heard the arguments of the learned counsel appearing for the petitioner and the learned counsels for the respondents.

Page 8 of 21

MVOP.No.95 of 2021 order dated 12.04.2023

8.ISSUE No.1: On behalf of the petitioner, himself examined as P.W-1 and has filed an affidavit in lieu of his chief examination, as contemplated under Order-XVIII, Rule-4 (1) of C.P.C. His evidence is nothing but replica of petition pleadings.

9.It is in the evidence of P.W-1 that on 14.01.2020 at about 6.00 hours, the claim petitioner started from his house at Prakash Nagar,

Khammam city by pushing his four wheeler rickshaw (cart) by pouring

Rangoli colors on his cart for selling from his house to Mahaboobabad road side when he came to Ramakoti Thanda in front of DARE

Engineering College, the driver of the mobile Crane bearing No.TS-04-

EE-7127 came from Khammam side to Mahaboobabad drove it in a rash and negligent manner and dashed behind the petitioner. Due to which, he fell down on the road received bleeding injuries on his legs, head, ribs, grievous and simple injuries and also pushing four wheeler Rickshaw

Rangoli colours are also damaged in the said accident and same was occurred due to rash and negligent driving of driver of mobile crane bearing No.TS-04-EE-7127. He did not take minimum care and caution while driving the crime vehicle, thereby caused the accident. The petitioner sustained injuries 1) Fracture of both bones of right leg, multiple fracture in below knee, 2) Fracture of Clavicle both side, 3)

Page 9 of 21

MVOP.No.95 of 2021 order dated 12.04.2023

Fracture of right shoulder, Fracture of right side Ribs, lacerated injuries to both legs, 5) Abrasion on the left hand, 6) Abrasion on the fore head, 7) abrasion on the left knee and multiple injuries all over the body.

10.P.W-1 denied the suggestion that the accident was occurred due to his negligence and that there was no negligence on the part of driver of crane. P.W-1 also denied the suggestions that the driver of auto and he was not having driving licence. He has also denied the suggestion that the crane owner was not having vaid permit and fitness to the cream. He denied suggestion that he has not spend Rs.2,00,000/- towards medical and other expenses. It is true that he has not filed any proof of document to show that he is earning Rs.10,000/- per month on business. He denied sugestion that he got 40% disability in the said accident. He denied suggestion that Ex.A-6, Ex.A-7 is not corabated with each other. He denied suggestion that Ex.A-9 certificate isued for the purpose of getting rail pass, bus pass. He denied suggestion that there is negligence on the part of driver of crime vehicle and the accident occurred eut ot negligence of petitioner. Except assertion nothing has been placed by the respondents to substantiate its version. On the other hand, there is nothing to disbelieve the testimony of P.W-1.

11.In Bimla Devi & Others V. Himachal Road Transport

Page 10 of 21

MVOP.No.95 of 2021 order dated 12.04.2023

Corporation & Others,1Kaushnumma Begum and others V. New

India Assurance Company Limited2 and in National Insurance Co.

Ltd. V. Pushpa Rana,3 it has been held that:

“the negligence has to be decided on the touchstone of preponderance of probabilities and a holistic view is to be taken. It has been further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a Civil Suit and hence, strict rules of evidence are not applicable”.

12.It is not in dispute that the police Khammam Rural registered a case in crime No.18/2020 under Section 337 of IPC against driver of the crime vehicle-crane, which is evident by the certified copy of First

Information Report (Ex.A-1). Further, a perusal of certified copy of charge sheet (Ex.A-2), it is clear that on completion of investigation, the

Investigation Officer has filed Charge Sheet (Ex.A-2) against the driver of crime vehicle-crane, for the offence under Section 338 of IPC, which prima facie reveals that the accident was occurred due to rash and negligent driving of driver of Crane bearing No.TS-04-EE-7127.

13.In view of the citations referred supra and from the material on record, it is clear that the petitioner sustained injuries in motor vehicle 1?(2009) 13 SC 530 2 2001 ACJ 421 SC 3 2009 ACJ 287

Page 11 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 accident and that the said accident was occurred due to rash and negligent driving of driver of crime vehicle- Crane bearing No.TS-04-EE- 7127. Accordingly, this issue is answered in favour of the petitioner and against the respondents.

14. ISSUE No.2: The claim petitioner filed the petition by claiming compensation of Rs.4,00,000/- with interest @ 18% per annum, under all heads, as compensation for the injuries sustained by him in the accident.

15.It is the evidence of P.W-1 that, he sustained fracture injuries i.e., 1) Fracture of both bones of right leg, multiple fracture in below knee,

2) Fracture of Clavicle both side, 3) Fracture of right shoulder, Fracture of right side Ribs, lacerated injuries to both legs, 5) Abrasion on the left hand, 6) Abrasion on the fore head, 7) abrasion on the left knee and multiple injuries all over the body and that immediately, he was shifted to

Government Head Quarters Hospital, Khammam for first aid and after attending first aid he was shifted to Srujana Orthopedic Hospital,

Khammam, where he was admitted as inpatient for 7 days i.e., from 14.01.2020 to 20.01.2020.

16.In support of his case, the petitioner has filed certified copy of medical certificate issued by Srujana Orthopedic Hospital, Khammam

Page 12 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 (Ex.A-3), Discharge summary issued by the Dr. PNVSV Prasad, MS

Orthopedic Surgeon from 14.01.2020 to 20.01.2020 (Ex.A-4), Discharge summary from Surjan Ortho Accident care Hospital, issued by the Dr.

PNVSV Prasad, MS Orthopedic Surgeon, Khammam from 24.07.2020 to 30.07.2020 (Ex.A-5), Prescriptions (12 in nos.) (Ex.A-6), Hospital bills and medical bills No.61, for total Rs.35,927/- (Ex.A-7), CT Scan report

No.1 (Ex.A-8), Xerox copy of Disability certificate issued by the Medical board at Khammam of 40% same is comparative with original (Ex.A-9),

X-ray filing No.2 (Ex.A-10) and scanning film No.1 (Ex.A-11).

17.The evidence of Dr. PNVSV Prasad (P.W-2), Orthopedic

Surgeon, corroborated the nature of injuries sustained by the petitioner and the nature of treatment given to him, in their hospital. The patient was initially taken to Government hospital for first aid and he was shifted to their hospital and he issued Ex.A-3 medical certificate in which the injury No.1 i.e., OT3 # L/3 BB which is grievous in nature and injury No.2 contusion which is simple in nature. He further deposed that the petitioner was operated on the same day and external fixator was applied to his right tibia and rush nailing to fibula and the discharge summery also show the fracture of 6th and 7th ribs which also grievous in nature but it is missing in the MC as he was takne for summery in mergency and so

Page 13 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 only the immediately observed injury came into the MC. He further deposed that he again admitted on 12.07.2021 for removal of Ilizarov fixator and discharged on 17.07.2021 with POP cast. He further deposed that the petitioner under his follow up till 25.11.2021 and his POP was removed on 02.09.2021 and advised walking with support of the stick.

He deposes that Ex.A-3 to A-11, which are genuine were issued by their hospital.

18.Ongoing through the evidence of P.Ws-1 and 2 and the medical evidence produced, this Tribunal is of the view that there is nothing to disbelieve the contention of the petitioner that he sustained injuries in the accident, which took place on 14.01.2020 and that the nature of treatment given to him.

19.Transport to hospital: Admittedly, the accident was occurred on 14.01.2020, at the outskirts of Srujan Orthopedic Hospital,

Khammam, where he was admitted as inpatient for 7 days. Even though the petitioner did not produce bills and did not examine any person, considering the nature of the injuries sustained by the petitioner and also the place of accident this Tribunal feels that a reasonable amount has to be awarded under this head and this Tribunal found that an amount of

Rs.10,000/- is found to be reasonable amount. Therefore, the petitioner is entitled to claim an amount of Rs.10,000/- under the head of transport

Page 14 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 expenditure.

20.Extra Nourishment:Though the petitioner proved that he sustained injuries in the accident and he was admitted hospital, there is no evidence before this Tribunal that the doctor prescribed to take vitamin food and other medicines for energy. Anyhow, considering the nature of the injuries received by the petitioner, his age and nature of disability, though there is no evidence before this Tribunal, this Tribunal feels that an amount of Rs.5,000/- is found to be reasonable amount.

Therefore, the petitioner is entitled to claim an amount of Rs.5,000/-, under the head of extra nourishment.

21.Medical Expenditure:According to the petitioner, he spent more than Rs.2,00,000/- for his treatment. However, he has filed medical bills-61 (Ex.A-7) all worth Rs.35,927/-. Considering the material on record, this Tribunal holds that the petitioner is entitled for Rs.35,927/-, under the head of medical expenditure.

22.Pain and Suffering:As seen from the record, the petitioner sustained three grievous injuries and one simple injury, which is evident by certified copy of medical certificate (Ex.A-3) and also the evidence of P.W-2 and as seen from (Ex.A-10 and Ex.A-11), the petitioner sustained right lower limb, impaired reach.

Page 15 of 21

MVOP.No.95 of 2021 order dated 12.04.2023

Taking into consideration of pain, suffering, Post Traumatic Sequal-

Limbs, loss of amenities, loss of expectation of life and loss of discomfort, frustration, mental stress, this Tribunal is of the view that if sum of

Rs.1,60,000/- is awarded, the same would meet the ends of justice, as held in Laxman @ Laxman Mourya V. Divisional Manager, Oriental

Insurance Company Limited and another4and K.Raghu Babu V.

C.Veera Sekhar and other5. Hence, the petitioner is entitled to

Rs.1,60,000/- towards pain and suffering.

23.Loss of Earning: According to the petitioner, he was aged about 50 years and he is making the Porter and also seasonal business by profession and that he used to earn Rs.10,000/- per annum. The petitioner did not file any document showing his date of birth. The medical record placed before this Court his age was shown as 50 years.

Taking into undisputed material on record, this Tribunal considers the age of the petitioner as 50 years as on the date of accident.

24.It is in his evidence that due to severe head injury and both legs injuries i.e., OT3 # L/3 BB, abrasion on the fore head, Abrasion on the left knee, which are grievous in nature, contusion which is simple in nature and multiple injuries on all over body and he was completely bed 42012 (3) ALD 53 (SC) 5 2011 (2) ALD 763

Page 16 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 ridden and that lost his earnings. Further, the petitioner did not file any documents to show his income, on the basis of his avocation and present days minimum wages of an ordinary agricultural coolie, this Tribunal considers income of the petitioner as Rs.6,000/- per month, for the purpose of fixing compensation.

25.No doubt, no evidence is adduced by the petitioner as to how many days the doctors advised him to take rest. However, considering age of the petitioner and the nature of the injuries sustained by him, this Tribunal holds that the petitioner is entitled for compensation of Rs.36,000/- (Rs.6,000/- x 6 months) under the head of loss of earnings.

26.Permanent Disability: According to the petitioner due to injuries sustained by him in the accident, he sustained 40% permanent disability and that he is unable to attend his seasonal business. Ex.A-9 is the

Disability Certificate showing that the petitioner sustained 40% disability.

The Doctor mentioned in Ex.A-9 that disability certificate recommended for reassessment after a period of 5 years, which is in relation to rigth lower limb, Impaired reach, post Traumatic Sequal-Limbs of forty (40%) percent disabllity. In this regard, conerned Doctor, who issued Ex.A-9 certificate was not examined. However, considering nature of injuries and

Page 17 of 21

MVOP.No.95 of 2021 order dated 12.04.2023 disability sustained by the petitioner, this Tribunal is of the opinion that it is just and proper to consider the functional disability as 20%.

27.It has to be calculated with reference to the age and income of the petitioner. Taking into consideration the age and income of the petitioner, 25% of the income has be added to the income of the petitioner towards future prospects as age was aged about 50 years, which comes to Rs.7500/- i.e., Rs.90,000/- per annum. Thus, the loss of future income due to 20% functional disability suffered by him due to the injuries sustained in the accident, taking the appropriate multiplier of (13) as per Sarala Verma and others V. Delhi Transport Corporation and another6and National Insurance Company Ltd., V. Pranay Sethi and others7, would be (20% of Rs.90,000/-) Rs.18,000/-x13 = Rs.2,34,00/-).

Therefore, the petitioner is entitled to Rs.2,34,000/-, under this head.

28.The petitioner is entitled for compensation under different heads as per the following table:

Sl. Head Compensation Amount No.

1.Transport to hospital Rs.10,000/-

2.Extra Nourishment Rs.5,000/-

3.Medical expensesRs.35,927/-

4.Pain and sufferingRs.1,60,000/- 6?(2009) 6 SCC 121) 7 AIR 2017 SC 5157

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MVOP.No.95 of 2021 order dated 12.04.2023

5.Loss of Earnings Rs.36,000/-

6.Permanent Disability Rs.2,34,00/-

Total Rs.4,80,927/-

Rounded to Rs.4,81,000/-

The claim petitioner is entitled for compensation of Rs.4,81,000/-.

29.Liability: It is not in dispute that the 1st respondent is driver, 2nd respondent is the owner and the 3rd respondent is the insurer of the crime vehicle-Crane bearing No.TS-04-EE-7127. Admittedly, no witnesses were examined on behalf of the respondent No.2 and 3.

30.It is not in dispute that the crime vehicle-auto bearing Crane bearing No.TS-04-EE-7127, was insured with 3rd respondent under policy

No.3380/01475695/000/01 and that the same was valid from 03.11.2019 to 02.11.2020. Admittedly, the accident was occurred on 14.01.2020.

Thus, it is clear that as on the date of accident, policy pertaining to crime vehicle, was in force.

31.Since, policy was in force and the accident was occurred due to rash and negligent act of driver crime vehicle- Crane bearing No.TS- 04-EE-7127, all the respondents are jointly and severally liable to pay compensation to the petitioner.

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MVOP.No.95 of 2021 order dated 12.04.2023

32.Rate of interest: The petitioner is claiming interest @ 18% per annum. As per the principles has laid down by the Hon'ble Supreme

Court, in New India Assurance Company Limited–Appellant V.

Charlie and another,8this Tribunal award an interest @ 7.5% per annum on the compensation amount. Accordingly, this issue is answered.

33. ISSUE No.3:In view of findings and conclusions, on the above issues, this Tribunal holds that the petitioner is entitled for compensation against, respondents. Accordingly, this issue is answered.

34.IN THE RESULT: The petition is allowed by awarding compensation of an amount of Rs.4,81,000/- (Rupees Four Lakhs

Eighty One Thousand only) with proportionate costs against the respondents and both the respondents, are jointly and severally liable to pay the same, with subsequent interest @ 7.5% per annum from the date of petition till the date of deposit of the amount.

(i)The respondents are directed to deposit the awarded amount within ONE month from the date of this award;

(ii)After deposit of the above said amount the petitioner is permitted to withdraw the entire amount;

(iii)The petitioner is directed to pay the deficit court fee within 15 days from today. Office is directedto 82005 ACJ 1131

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MVOP.No.95 of 2021 order dated 12.04.2023 prepare the decree after paying court fee;

(iv)The Advocate fee is fixed at Rs.2,000/- (Rupees Two Thousand only).

Typed to my dictation, corrected and pronounced by me in the open court on this 12 th day of April, 2023.

Sd/-xx

Chairman Motor Accidents Claims Tribunal-cum- II Additional District Judge, Khammam

::APPENDIX OF EVIDENCE::

WITNESSES EXAMINED ON BEHALF OF PETITIONER

P.W-1:Kothapally Raghavulu 29.03.2022

P.W-2:Dr. PNVSV Prasad 16.11.2022

WITNESSES EXAMINED ON BEHALF OF RESPONDENTS

- Nil-

DOCUMENTS EXHIBITED ON BEHALF OF PETITIONER

Ex.A-1 Certified copy of First Information Report with- Complaint.

Ex.A-2 Certified copy of Charge Sheet in-

CC.No.407/2020 of II Addl. JMFC Court,

Khammam.

Ex.A-3 CC of medical certificate issued by Srujan- Orthopedic Care Hopsital, Khammam.

Ex.A-4Discharge summary issued by the Dr. PNVSV Prasad, MS. Orthopedic Surgeon, Khammam from 14.01.2020 to 20.01.2020.

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MVOP.No.95 of 2021 order dated 12.04.2023

Ex.A-5Discharge summary issued by the Dr. PNVSV- Prasad, MS. Orthopedic Surgeon, Khammam from 24.07.2020 to 30.07.2020.

Ex.A-6Prescriptions (12 in nos.).-

Ex.A-7Hopsital bills and medical bills No.61, for total- Rs.35,925/-.

Ex.A-8CT Scan report No.1.-

Ex.A-9Xerox copy of Disability certificate issued by the- Medical Board at Khammam, showing the disability of 40%, same is compared with original.

Ex.A-10X ray filing No.2.-

Ex.A-11Scanning Film No.1. -

DOCUMENTS EXHIBITED ON BEHALF OF RESPONDENTS

Ex.B.1:Insurance police bearing No.3380/01475695 /000 - /01 valid from 03.11.2019 to 02.11.2020

Sd/-xx

Chairman Motor Accidents Claims Tribunal-cum- II Additional District Judge, Khammam