The High Court dismissed this first appeal filed by an unsuccessful plaintiff who sought specific performance of a disputed sale agreement. The court held that the plaintiff failed to prove the agreement, denied capacity to purchase, and the suit was barred by limitation.
The appeal was dismissed with no costs to be awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HON’BLE SRI JUSTICE K.G.SHANKAR
Appeal Suit No.204 of 2003
Date: 22-02-2013
Between
Manthena Valli Kumari
... Appellant/
Plaintiff
and
Pentyala Hanumantha Rao and another
... Respondents/
Defendants
HON’BLE SRI JUSTICE K.G.SHANKAR
Appeal Suit No.204 of 2003
Judgment:
The unsuccessful plaintiff preferred this appeal. She initially sought for bare injunction on the basis of Ex.A-1 agreement of sale. As the 1st defendant denied the truth and validity of Ex.A-1 agreement of sale, the plaintiff converted the suit as a suit for specific performance.
2. It is the case of the plaintiff that she entered into an agreement of sale with the 1st defendant on 31-12-1992 under Ex.A-1 to purchase the plaint schedule property for a consideration of Rs.1,35,000/-. The plaint schedule property consists of Ac.7-34 cents in Survey No.132 and Ac.0-16 cents in Survey No.105 of Neeredupalli Village of Bapatla Mandal. The plaint schedule properties are wet lands. It is the further case of the plaintiff that she has been cultivating the plaint schedule property and paying rent to the Government since 1989. The 1st defendant had absolute title to the plaint schedule property, which he had purchased from one Kavuri Yanadi Reddi, Kottanadayapalem Village. The plaintiff also averred that possession of the plaint schedule property was delivered to her even prior to the date of Ex.A-1 agreement of sale.
3. The cause of action, according to the plaintiff initially arose when the 1st defendant has started proclaiming in the village that he would dispose of the property in respect of which, he had already entered into agreement of sale with the plaintiff. Further, when the suit was laid for perpetual injunction and when the
1st defendant denied Ex.A-1, cause of action arose for a suit for specific performance. The plaintiff consequently seeks for specific performance of the agreement of sale under Ex.A-1 and for perpetual injunction.
4. The 1st defendant filed written statement contending that he gifted Ac.0-75 cents of land out of the plaint schedule property to the 2nd defendant, who is no other than his son-in-law. Consequently, the plaintiff sought for the alternative relief of refund of the sale consideration together with interest at 12% per annum.
5. The 1st defendant averred:
(a) The agreement of sale under Ex.A-1 is false and is a rank forgery. The plaintiff does not have means to purchase the plaint schedule property. The plaintiff, along with her sons is indebted to various persons and that they entered into an agreement of sale on 20-10-1992 with one Muvva Rama Seshagiri Rao to sell their lands in order to raise funds to discharge their debts. The agreement-holder subsequently filed O.S.No.32 of
1993 on the file of the Senior Civil Judge, Bapatla, against the plaintiff and her two sons for specific performance of agreement of sale dated 20-10-1992.
(b) The value of the plaint schedule property is more than Rs.40,000/- per acre in 1992. The question of the 1st defendant selling or agreeing to sell the same at Rs.1,35,000/- consequently is false. The 1st defendant had no necessity to sell the same. The 1st defendant has settled Ac.0-75 cents of land in Survey No.132 on 04-7-1996 in favour of the 2nd defendant, who is his son-in-law. The plaintiff has not been in possession of the plaint schedule property. Further, the 1st defendant is a marks person and could not have signed Ex.A-1. The suit of the plaintiff is barred by limitation.
6. The plaintiff examined herself as P.W.1 and one of the attestors of Ex.A-1 agreement of sale as P.W.2. She examined two other witnesses whom
Sri M.Janardhana Rao, learned counsel for the plaintiff, claims to be independent witnesses. It may be noticed that the 1st defendant had taken a stand that he is a marks person. Ex.A-1 agreement of sale bears the alleged signature of the 1st defendant. After due consideration, the trial court held that the 1st defendant was indeed a marks person and that he occasionally used to sign and disbelieved the contention of the
1st defendant that he did not know how to sign. The case of the defendants that the plaintiff has no capacity to purchase the plaint schedule property however was accepted by the trial court. The trial court disbelieved Ex.A-1 and consequently dismissed the suit.
7. The plaintiff examined P.W.2, one of the attestors of Ex.A-1. As already noticed, Ex.A-1 is a possessory agreement of sale dated 31-12-1992. It recites that the consideration was Rs.1,35,000/-, that the whole of the consideration was paid and that the 1st defendant delivered possession of the plaint schedule property to the plaintiff. Ex.A-1 was scribed on a one rupee Non Judicial Stamp Paper but it was properly impounded before the trial court.
8. The plaintiff (P.W.1) examined one of the attestors as P.W.2. However, her contention is that the other attestor by name Pulipati Rama Tarakam died about 14 years prior to her evidence. The trial court made a mathematical calculation from the date of the evidence of P.W.1 and considered that the other attestor must have died in or around 1987 whereas Ex.A-1 was allegedly executed in 1992. The trial court consequently held that Ex.A-1 was false.
9. To obviate the situation, the plaintiff now seeks to file additional evidence. The plaintiff proposed to file the
death extract of Pulipati Rama Tarakam claiming that the other attestor died on 26-11-2001, which was about 9 years after the execution of Ex.A-1 agreement of sale. However, I reject to consider receiving additional evidence because no reasons were assigned as to why the plaintiff could not let in additional evidence at the time of the trial. Be that as it is, I consider that no damage is caused to the cause of the plaintiff regarding the time of the death of the other attestor of Ex.A-1. It may be noticed that the case of the plaintiff as P.W.1 is that the other attestor died “about” 14 years ago and not exactly 14 years ago. Mathematical calculation in such a context is not safe to disbelieve the evidence of P.W.1. Further, the Indian Evidence Act, 1872, contemplates proof of documents by examining one of the attestors at least in the event the document is compulsorily attestable.
Even if Ex.A-1 is a compulsorily attestable document, the plaintiff discharges the burden by examining P.W.2. The truth of Ex.A-1 depends on the veracity of the evidence of P.Ws.1 and 2 and not upon the fact that the plaintiff did not examine the other attestor.
10. P.W.2 is a totally interested witness. He is no other than the brother of P.W.1. It therefore is clear that the evidence of P.Ws.1 and 2 deserves to be examined with circumspection. Curiously, P.W.1 made a categorical admission that she did not take possession of the property although it was recited in Ex.A-1 that
possession was delivered to her. Where the plaintiff herself admitted that the recitals of Ex.A-1 are not true, as rightly submitted by Sri B.Adi Narayana Rao, learned Senior Counsel for the defendants, the burden is very heavy upon the plaintiff to show that the transaction has transpired in fact. The defendants however contended that the plaintiff does not have means to purchase the plaint schedule property. It may be recalled that it is the case of the defendants that the plaintiff sold their properties to one M.R.Seshagiri Rao. It is also a fact that the said Seshagiri Rao filed O.S.No.32 of 1993 on the file of the Senior Civil Judge, Bapatla, seeking specific performance against the plaintiff and her two sons.
11. It is the case of the defendants that the question of the plaintiff purchasing the plaint schedule property would not arise where the plaintiff was selling her other properties. The agreement of sale allegedly executed by the plaintiff and her two sons in favour of M.R.Seshagiri Rao has not been filed. It is not clear why the plaintiff sold her property on 20-10-1992. I am not prepared to assume that the plaintiff sold her properties on 20-10-1992 to M.R.Seshagiri Rao to raise funds to purchase the property of the 1st defendant on 31-12-1992, since the plaintiff did not make such a statement anywhere. In the absence of such clear-cut explanation from the plaintiff, the trial court is fairly justified in considering that the plaintiff did not have means to
purchase the plaint schedule property as the plaintiff, in fact, was selling the properties a couple of months prior to Ex.A-1. Consequently, it is not possible that the plaintiff did not have capacity to purchase the plaint schedule property.
12. The suit was laid for injunction initially. About 3 years and 4 months thereafter, the suit was converted into one for specific performance. The limitation for a suit for specific performance is 3 years under Article 54 of the Limitation Act, 1963. As rightly submitted by the learned Senior Counsel for the defendants, the very suit is barred by limitation as the plea of specific performance was taken more than 3 years after the date of the suit, which fairly implies denial on the part of the 1st defendant to abide by Ex.A-1 agreement of sale.
13. It may be recalled that the plaintiff contended that she paid the entire sale consideration under Ex.A-1. Although Ex.A-1 recited that possession was delivered to the plaintiff, she admitted in her cross-examination that possession was not delivered under Ex.A-1. Further, where the plaintiff paid the entire sale consideration, it was more natural for her to take possession of the link documents. However, the link documents remained with the 1st defendant himself. These factors do not support the case of the plaintiff that there was an agreement, a valid and effective agreement of sale between the
plaintiff and the 1st defendant. Curiously, the plaintiff claims that she has been paying revenue tax from 1989 whereas the plaintiff entered into agreement of sale in 1992 according to the plaintiff herself. At any rate, the tax receipts under Exs.A-2 to A-5 cannot confer any title and cannot confirm the alleged agreement of sale between the plaintiff and the 1st defendant. I therefore cannot take cue from Exs.A-2 to A-5 to accept Ex.A-1 agreement of sale.
14. P.W.3 is the Branch Manager, Andhra Bank, Appikatla and P.W.4 is a Clerk of the Gas Agency from which the plaintiff obtained gas connection. Their evidence regarding the agreement of sale is neither here nor there. Their evidence is of no use in determining the merits of the case.
15. The overall circumstances show that the plaintiff failed in establishing Ex.A-1 agreement of sale and passing of consideration under Ex.A-1. The basis of the plaintiff’s claim is Ex.A-1. When Ex.A-1 could not successfully be established by the plaintiff, the case of the plaintiff crumbles. The suit was devoid of merits and was rightly dismissed by the trial court. There are no merits in this appeal. This appeal accordingly is dismissed, however without costs.
__________________ K.G.SHANKAR, J.
22nd February, 2013. Ak
HON’BLE SRI JUSTICE K.G.SHANKAR
Appeal Suit No.204 of 2003 (P.D. Judgment)
22nd February, 2013. (Ak)
3 issues framed by the court
Whether the appeal lies when the appellant failed to prove the existence and validity of the agreement of sale.
Whether the suit for specific performance is barred by limitation as the plea was taken after the original cause of action.
Whether the appellant had financial capacity to purchase the scheduled property given she was selling other properties in the same period.
1 provisions across 1 enactments
Manthena Valli Kumari
Pentyala Hanumantha Rao
K.G. Shankar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
