Dismissed

D. Lakshmidevi v. M. Virupaksha Reddy

Telangana HC24 Aug 2012SA/537/1996

Case brief

AI extract

What is this about?

This second appeal challenged a decree for specific performance of an agreement of sale. The appellant contended the lower court erred in re-recording Witness evidence despite no such direction in the remand order. The court rejected these contentions, finding the agreement valid and dismissing the appeal.

What did the court decide?

The Second Appeal was dismissed against the respondent defendants.

D. Lakshmidevi Vs M. Virupaksha Reddy — Specific Performance | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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S.A.No.537 of 1996

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J U D G M E N T:

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The unsuccessful defendants in OS.No.45 of 1980 on the file of the District Munsif, Gooty, are the herein. The suit was one filed for specific performance of contract of sale dated 03.12.1976 alleging that the late first defendant entered into an agreement of sale with plaintiff for sale of the schedule property for a sum of Rs.2,500/- and received a sum of Rs.2,400/- and executed an agreement. Possession was also given to the plaintiff. The plaintiff went to the Registrar office on 29.03.1978 and 30.03.1978 and waited there for discharging his obligation to pay the balance of money but the first defendant did not turn up. A legal notice was also issued and the same was returned. The first defendant died on 22.02.1980 leaving behind the second defendant as the sole legal heir, who succeeded to the property. It was also further alleged that after the institution of the suit, the third defendant claimed to have purchased the suit schedule property on 12.02.1980 and therefore, he is a necessary party to join in execution of the sale deed. Hence the suit.

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2. The second defendant filed written statement denying the execution of the contract of sale and also the receipt of the consideration. It was pleaded that her father did not execute the agreement of sale. The readiness and willingness pleaded by the plaintiff is also not true. In-fact, during his lifetime, the first defendant gave a complaint to the Collector about the hind handed behaviour of the plaintiff in obtaining his thumb marks on certain documents, for which an enquiry was held. Therefore, the defendant pleaded for dismissal of the suit.

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3. After considering the evidence on record, the suit was dismissed originally on 20.4.1981 and the plaintiff preferred the appeal in A.S.No.161 of 1981 and the said appeal was allowed by the District Court remanding the matter to the lower Court with a direction to give

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opportunity to the plaintiff to cross examine D.Ws.1 and 2 and decide the matter afresh. Thereafter the suit was decreed granting specific performance of the agreement of sale and aggrieved by the said Judgment, the appeal in A.S.No.5 of 1981 was carried to the Subordinate Judge, Gooty contending that the trial conducted by the Junior Civil Judge after remand is not proper in recording the evidence of PWs.1 to 5 afresh and also failure to consider Exs.B.1 to B.6 documents and the said appeal was also dismissed.

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4. As against that judgment, the present second appeal is filed. The second appeal was admitted in view of the following substantial question of law.

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a) Whether the judgment of the trial Court is not vitiated as learned Munsif had acted contrary to the directions of the District Judge remanding the matter and in recording the evidence of PWs.1 to 5 afresh even though there is no such direction in the said remand order?

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5. It is the contention of the appellants herein that the first defendant during his lifetime has given a complaint to the Collector that his thumb impressions were taken forcibly and using them the alleged agreement-Ex.A.1 was fabricated. But as could be seen from Exs.B.1 to B.6, they did not relate to any of the complaint of taking thumb impression on blank papers. It was essentially a complaint with regard to the highhandedness of the plaintiff in taking away the tamarind trees from the field of the first defendant. It has nothing to do with regard to the alleged obtaining of the documents from the first defendant by force. Consequently, the theory set up by the defendant cannot be accepted.

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6. The evidence of PW.1 coupled with the other circumstances clearly goes to show that the agreement of sale is true and a sum of Rs.2,400/- was paid as consideration. In-fact, both the Courts have appreciated the evidence as to the question of fact and I do not find any infirmities to come to a different conclusion. So far as the irregularity in conducting the trial attributed to the trial Court is concerned, I feel it may not be correct. Evidently, the matter was remanded for cross-examination

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of DWs.1 and 2 and their evidence was also recorded after remand. So far as the evidence of PWs.1 to 5 is concerned, no doubt the evidence is shown to have been recorded from April, 1986 after the remand afresh. The appellants has not taken any objection for recording the evidence of PWs.1 to 5 afresh. But however the depositions of PWs.1 to 5, which were recorded earlier, have been marked as Exs.B.8 to B.12. In-fact, no contradictory statements have been elicited to discredit the version of the witnesses. No material improvements were also made out from the earlier version at the latter version. Even if the latter evidence is to be ignored, then considering the earlier evidence, it will not make any difference with regard to the proof of the agreement which has been accepted by the Courts below by giving cogent reasons.

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7. The learned counsel for the appellants contend that the value of the property has risen and the amount as it appears is very less, hence the discretionary relief of specific performance may be converted into one for refund of the money. It is to be noted that today the value of the property may be more but the value of Rs.2,400/- in 1976, which is believed to have been paid by the plaintiff, is more. Therefore, in view of the above circumstances, it cannot be said that it is inequitable to grant the relief of specific performance. Consequently, the Second Appeal is liable to be dismissed.

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8. Accordingly the Second Appeal is dismissed. No costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.

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_________________________________ JUSTICE N.R.L. NAGESWARA RAO 24.08.2012 vjl

D. Lakshmidevi v. M. Virupaksha Reddy

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D. Lakshmidevi v. M. Virupaksha Reddy

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