Dismissed

Paladugu Ramesh v. Shaik Begum Bee (died)

Telangana HC11 Dec 2013SA/691/2002

Case brief

AI extract

What is this about?

In this second appeal, the Court dismissed the appeal filed by a plaintiff seeking a perpetual injunction over property purchased under an agreement of sale. The Court found the lower appellate court correct in holding that the plaintiff failed to prove possession, readiness to perform, and payment of balance consideration, and the suit for injunction without specific performance was not maintaina

What did the court decide?

The second appeal was dismissed; the judgment and decree of the lower appellate court were upheld.

Paladugu Ramesh Vs Shaik Begum Bee (died) — Property and Title | Telangana HC (2013)

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*** HON’BLE SRI JUSTICE B. CHANDRA KUMAR**

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+ SAMP Nos.1160 of 2010 and 3369 of 2012

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and Second Appeal No. 691 of 2002

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% 11.12.2013

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# Paladugu Ramesh .. Appellant/Respondent/Plaintiff Vs.

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$ Shaik Begum Bee and others .. Respondents/Appellants/Defendants

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<GIST: >HEAD NOTE: ! Counsel for Appellant : Sri K.V. Satyanarayana ^ Counsel for respondents: Sri V. Rama Krishna Reddy

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? CASES REFERRED :

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1. 1998(6) ALD 278 2. 2006(1) ALD 669(DB) 3. AIR 1960 AP 331

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4. (2002) 3 SCC 676

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5. 2011(5) ALD 317

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6. 2011(3) ALD 147(SC)

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7. AIR 1966 SC 605

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8. (2009) 5 SCC 264

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9. (2004) 5 SCC 762

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10. (2007) 1 SCC 546

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11. (2004) 10 SCC 146

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12. (2006) 2 SCC 496

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13. LAWS (SC)-2003-3-109

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14. AIR 2007 AP 225

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15. AIR 1970 SC 546

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16. AIR 1997 Himachal Pradesh 12

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17. AIR 1986 Karnataka 99

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18. 2009(4) ALT 515

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19. 2009 (4) ALT 379

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20. AIR 1940 Madras 273

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21. 1998(6) ALD 278

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HON’BLE SRI JUSTICE B. CHANDRA KUMAR SAMP Nos. 1160 of 2010 and 3369 of 2012 and Second Appeal No. 691 of 2002

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Common Judgment:

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This second appeal is directed against the judgment and decree dated 16.07.2002, passed in A.S. No.14 of 1999 by the Senior Civil Judge, Suryapet, whereby and whereunder the judgment and decree dated 29.11.1999 passed in O.S. No.146 of 1992, by the Junior Civil Judge, Kodad, Nalgonda District, has been reversed.

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The parties hereinafter will be referred to as they are arrayed before the trial Court for the sake of convenience.

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The brief facts of the case are as follows. Late Shaik Dastagiri is the original owner of the schedule mentioned property. The first defendant Shaik Begum Bee was the second wife of late Dastagiri. Defendants 2 and 3 are the sons of late Dastagiri through his first wife. The plaintiff Paladugu Ramesh was the proprietor of Lakshmi Auto Financiers. It appears that Shaik Dastagiri had indebted to said Lakshmi Auto Financiers. Exs.A3 to A6 reveal that Shaik Dastagiri and Company paid an amount of Rs.27,000/- on 04.02.1989, Rs.10,000/on 31.03.1989, Rs.10,000/on 24.05.1989 and Rs.13,000/- on 08.07.1989 towards the due amount to be paid by them towards the hire purchase agreement of vehicle dated 28.08.1985.

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The plaintiff filed the suit for injunction, inter alia, contending that he purchased the schedule mentioned land admeasuring Ac.5-00 under an agreement of sale dated 15.02.1990 for a consideration of Rs.1,95,000/- from late Shaik Dastagiri. As per the terms and

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conditions stipulated in the agreement the plaintiff was required to pay Rs.1,82,000/- to Lakshmi Auto Financiers, Gudiwada, out of the total consideration of Rs.1,95,000/- as Dastagiri and his sons were indebted to Lakshmi Auto Financiers. The further case of the plaintiff is that accordingly he paid to the said financiers and obtained receipts therefor. The balance sale consideration of Rs.12,000/- was to be paid by 31.03.1990. It is also his case that he was put in possession of the suit schedule land on the same day. It is also his case that he made repeated visits with intend to pay the balance, but the defendants 2 and 3 and their father postponed the matter on some pretext or the other and failed to execute registered sale deed and in the meanwhile Shaik Dastagiri expired. It is also his case that as there is steep rise in the market value of the lands now the defendants developed a greedy eye and started to interfere with his peaceful possession and enjoyment and trespassed into his land on 25.07.1992 and that with great difficulty he resisted the acts of the defendants.

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The defendants 2 and 3 did not contest the suit. The first defendant i.e., the second wife of Shaik Dastagiri alone contested the suit and denied all the material averments made in the plaint. The alleged agreement of sale dated 15.02.1990 is specifically denied. It is also denied that the plaintiff was put in possession of the property and that he was in possession of the property on the date of filing of the suit. It is specifically alleged that the plaintiff got the pahani patrika for the year 1992-93 fabricated in collusion with the village assistant. It is also specifically averred that the alleged agreement of sale dated 15.02.1990 is not valid and binding. The specific case of the first defendant is that her husband while going on pilgrimage to Mecca in 1983 gifted the suit land to her towards her Meher and executed a document. Her specific case is that she has been in continuous possession and enjoyment of the same and paying land revenue regularly.

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The trial Court framed the following issues for trial.

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1. Whether the plaintiff is entitled for the decree of perpetual injunction as prayed for?

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2. To what relief?

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On behalf of the plaintiff, the plaintiff himself was examined as PW.1 and PWs.2 to 7 were also examined and Exs.A1 to A7 were marked. On behalf of the defendants, the first defendant was examined as DW.1 and one G. Ramulu was examined as DW.2 and Exs.B1 to B7 were marked and Exs.X1 to X6 were also marked

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The learned Junior Civil Judge, on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff has been in possession of the property and that the version of the defendants is not acceptable and accordingly decreed the suit. Aggrieved by the same, the first defendant preferred an appeal. The lower appellate Court relying on the judgment of this Court reported in K. Venkat Rao v. Sunkara Venkata Rao^[1] , came to the conclusion that the right conveyed under Section 53-A of the Transfer of Property Act (for brevity ‘the Act’) can be relied upon as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he used it as a shield. It was further held that the suit filed for perpetual injunction without seeking the relief of specific performance of agreement of sale is barred under Order 2 Rule 1 CPC and therefore the suit is not maintainable. Since the plaintiff has not sought for the relief of specific performance of contract, moreover there is no evidence to show that the plaintiff has paid the remaining balance of sale consideration amount and once the transferee commits default under the agreement of sale his possession ceases to be lawful and he shall no longer be entitled to retain the possession. The lower appellate Court also came to the conclusion that pahani for the year 1991-92 is not traced and therefore the copy of the same filed cannot be relied upon. Thus, the lower appellate Court came to the conclusion that the plaintiff failed to prove that he was in

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possession of the property as on the date of filing of the suit and accordingly not entitled for injunction order. The lower appellate Court also came to the conclusion that for non-filing and marking of agreement of sale adverse inference has to be drawn against the plaintiff.

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The main submission of Sri K.V. Satyanarayana, learned counsel for the plaintiff/appellant is that the plaintiff in fact filed the agreement of sale dated 15.02.1990, but when its admissibility was questioned, the plaintiff could not mark the same. His main submission is that when an objection was raised, the lower Court ought to have passed an order with regard to admissibility of the document and non-passing of an order with regard to admissibility of the document resulted in miscarriage of justice. Though it was argued initially that Order XIII Rule 6 CPC is not followed, after verifying the records when it is brought to the notice of the learned counsel for the plaintiff that the trial Court in fact passed an order that unless the agreement of sale is impounded the same cannot be marked, the learned counsel has not insisted the said point. Learned counsel for the plaintiff submitted that the plaintiff filed SAMP No.2527 of 2008 in this appeal to receive the said agreement of sale dated 15.02.1990 and this Court, by orders dated 10.12.2008, allowed the said petition and permitted the plaintiff to pay deficit stamp duty and penalty. It is also his submission that if this Court considers necessary and appropriate to receive further evidence at the stage of second appeal and in the interest of justice and both parties, it may permit the additional evidence to be adduced by invoking Order 42 CPC and by taking the aid of Order 41 Rule 27 CPC and in support of the said contention he has relied on the Division Bench judgment of this Court

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reported in Chapala Chinnabbayi v. Naralasetti Anusuyama^[2] . It is also his contention that in fact the plaintiff filed the agreement of sale in the trial Court and when he has produced a document in the trial Court and when there was an objection to its reception the settled legal

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position is that no adverse inference can be drawn against a party who produced the document merely because it could not be marked and in support of the said contention he placed reliance on the judgment of this Court reported in J.N. Eranna Rao v. Vitta Dodda Hanumanthappa Subbayya Setty and Company, Bellary and Adoni by partner Vitta Anjaneya^[3] . Thus, the main submission of Sri K.V. Satyanarayana is that the lower appellate Court ought not to have drawn adverse inference against the plaintiff for not marking the agreement of sale.

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The next submission of Sri K.V. Satyanarayana is that the plaintiff filed Ex.A1 pahani for the year 1991-92 and examined PW.5 the VAO and also marked Ex.A7 agreement of sale executed by the plaintiff and defendant 2 and 3 in favour of one Gopaiah and examined PW.6 the scribe of the agreement of sale and when the plaintiff has proved his possession over the suit schedule land the lower appellate Court is not justified in reversing the finding of the trial Court. It is also argued that the case of the first defendant is that her husband Shaik Dastagiri gifted the land under Ex.B5 unregistered gift deed in 1983 and admittedly it is not properly stamped, however Exs.B3 and B4 land revenue receipts show that the land revenue was paid on 10.04.1985 and 31.07.1983 and if at all the alleged gift as meher in favour of the first defendant is true the first defendant would not have paid taxes in the name of her husband and she would have paid taxes in her own name and this important circumstance has not been considered by the lower appellate Court. It is further argued that the observation of the lower appellate Court that the suit is not maintainable since the plaintiff has filed a suit for injunction without seeking the relief of specific performance of agreement of sale is not correct unless there is a specific plea by the defendants under Order 8 Rule 2 CPC. It is also argued that no issue was framed with regard to maintainability of the suit as required under Order 6 Rule 8 CPC. It is further submitted that so long as the plaintiff is willing to perform his part of contract the suit

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for injunction is maintainable and in support of his contention he relied on the judgment of the Apex Court reported in Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi (Dead) by LRs^[4] . It is his submission that all the conditions, which are required to be fulfilled if a transferee wants to defend or wants to protect his possession under the provisions of the Transfer of Property Act, have been fulfilled. It is also his submission that the suit for injunction is maintainable even in the absence of a suit for specific performance of contract and in support of his contention reliance is placed on a decision reported in Kuruvakotapaty Chinna Linganna v. Alla Mallikarjuna Reddy^[5] . His main grievance is that the lower appellate Court has simply decided the appeal on the point of maintainability of the appeal and did not assess the evidence and in support of his contention that it is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points reliance is placed on a decision reported in H. Siddiqui (dead)

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by LRs v. A. Ramalinga m^[6] . It is also his submission that the plaintiff has filed Ex.A1 pahani for the year 1991-92 and no party has filed pahani for the year 1992-93 and when the plaintiff has filed pahani for the year 1991-92 a presumption of continuity forwards or backwards may be drawn under Section 114 of the Indian Evidence Act and reliance is placed on a decision reported in Ambika Prasad Thakur v.

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Ram Ekbal Rai (dead) by his LRs^[7] . It is also his submission that this Court has also permitted the plaintiff to pay the deficit stamp duty and penalty and since the plaintiff has already paid deficit stamp duty as per the orders of this Court in SAMP No.2527 of 2008 the agreement of sale may be received as additional evidence and may be marked as Ex.A8.

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Sri Prakasa Reddy, learned Senior Counsel representing

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Sri V. Rama Krishna Reddy, learned counsel for the first defendant, submitted that the survey numbers mentioned in the plaint and in the agreement of sale are differing and no useful purpose would be served by receiving the alleged agreement of sale. However, learned counsel for the plaintiff submitted that the plaintiff has specifically averred in the plaint that there was a mistake in mentioning the survey numbers in the agreement of sale, but the suit schedule mentioned lands have been purchased under the agreement of sale. It is further submitted that this averment of the plaintiff is not denied by the first defendant and therefore the agreement of sale can be received as additional evidence.

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Sri Prakasa Reddy submitted that no substantial question of law arises in this appeal and when there is no substantial question of law arises the second appeal has to be rejected at the threshold. He has relied on decisions of the Apex Court reported in Narayanan

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Rajendran v. Lekshmy Sarojin i^[8] , Thiagarajan v. Sri Venugopalaswamy B. Koi l^[9] , Gurdev Kaur v. Kak i^[10] and Manomati Chethia v. Naren Pathak^[11] . He has also referred Sections 100 and 103 CPC in support of his contention that without formulating substantial question of law the High Court is not justified in dealing with the second appeal. His next submission is that even on facts the plaintiff has no locus standi. His main submission is that the agreement of sale is dated 15.02.1990 and the plaintiff’s specific case is as per the terms and conditions of the agreement of sale he has paid the amounts to Lakshmi Auto Financiers and that the said contention of the plaintiff is factually incorrect. His main submission is that Ex.A3 is dated 04.02.1989, Ex.A4 is dated 31.03.1989 and Ex.A5 is dated 24.05.1989 and Ex.A6 is dated 08.07.1989 and that all those payments were made prior to 15.02.1990 and by stretch of no imagination it can be said that those amounts have been paid as per the terms and conditions of the agreement of sale dated 15.02.1990. It

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is also his submission that even otherwise Exs.A3 to A6 simply show that the payments have been made on behalf of late Dastagiri and company by the second defendant and there is nothing on record to show that those payments have been made by the plaintiff or on behalf of the plaintiff. It is also argued that the plaintiff is no other than the proprietor of Lakshmi Auto Financiers and no reliance can be placed on those receipts issued by Lakshmi Auto Financiers.

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His next submission is that when the first defendant has denied the agreement itself and it is the case of the first defendant that there is no such agreement, the agreement cannot be relied upon. It is also his submission that the survey numbers mentioned in the plaint schedule properties do not find place in the agreement of sale. Moreover no schedule i.e., boundaries of the suit schedule lands are given in the agreement of sale and it is only a Xerox copy. It is further submitted that when the main suit itself is based on the agreement of sale the plaintiff ought to have taken steps to mark the agreement of sale in the trial Court itself. It is also his submission that protection under Section 53-A of the Act is not available to a purchaser under an agreement of sale unless it is shown that he was put in possession of the property and that he was always ready and willing to perform his pat of contract. Reliance is placed on the judgment of the Apex Court

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reported in H.P. Pyarejan v. Dasappa (Dead) by LRs^[12] in support of his contention that it is for the plaintiff to plead and prove that he had always been ready and willing to perform his part of contract. It is also his submission that the settled legal position is that it is for the plaintiff to prove that he has fulfilled the conditions enumerated under Section 53-A of the Act. Reliance is placed on the decisions reported in D.S. Parvathamma v. A. Srinivasan^[13] , Syed Burhan (deceased) by LRs v. Mohammad Jahangi r^[14] , Nathulal v. Phoolchand^[15] , Sohan Singh v. Gulzar i^[16] , and U.N. Sharma v. Puttegowda^[17] . His next submission is that when the plaintiff has obtained a copy of

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pahani in collusion with the Village Assistant, the first defendant approached the revenue authorities and the revenue authorities have passed appropriate orders which would show that the entries showing the name of the plaintiff was incorrectly made, therefore no reliance can be placed on the documents filed by the plaintiff. It is also his submission that the suit was filed on 10.08.1992 and the Ex.A2-land revenue receipt was obtained by the plaintiff on 01.08.1992 i.e., just 10 days prior to filing of the suit. It is also his submission that the suit for perpetual injunction without praying the relief of specific performance on the strength of agreement of sale is not maintainable and in support of his contention he relied on a decision reported in K. Sudha Rani v. G.F.K. Saradamma^[18] , wherein the judgment relied on by the plaintiff in case between Chellingi Narayanamurthy v. Chillingi Satyanarayana^[19] , has been discussed. It is further argued that even assuming for the sake of argument that the agreement of sale had been executed by Shaik Dastagiri in favour of the plaintiff, admittedly the plaintiff did not issue any notice expressing his willingness and readiness to pay the balance sale consideration amount to Shaik Dastagiri.

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In reply, Sri K.V. Satyanarayana submitted that the trial Court accepted Ex.A3 and the finding of the trial Court with regard to Ex.A3 is not adverted and set aside by the lower appellate Court and the said finding has become final. Sri Prakasa Reddy, learned counsel for the first defendant, submitted that the respondents can raise all the points in an appeal filed by the appellant.

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Now the points that arise for consideration in this second appeal are as follows.

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1. Whether any substantial question of law arises in this second appeal?

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2. Whether the suit for mere injunction is maintainable in the absence of any relief for specific performance under agreement of sale?

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3. Whether the plaintiff has been in possession and enjoyment of the suit schedule property as on the date of filing of the suit?

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The plaintiff also filed SAMP No.1160 of 2010 to receive the certified copy of the agreement of sale dated 15.02.1990.

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Learned counsel for the plaintiff/appellant has relied on a decision reported in Chapala Chinnabbayi’s case (2 supra). This Court having dealt with the provisions of Section 103 CPC which deals with the power of High Court to determine the issue of fact in second appeal held that if the High Court considers necessary and appropriate to receive further evidence at the stage of second appeal and in the interest of justice and both parties, it may permit the additional evidence to be adduced by invoking Order 42 CPC and by taking the aid of Order 41 Rule 27 CPC. Though the parties to the proceedings in a second appeal are not entitled as a matter of right to adduce additional evidence, in exceptional and compelling circumstances, the High Court may take the aid of Order 42 CPC and permit adducing of additional evidence in the second appeal in the interest of justice.

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The appellant filed an affidavit contending that he obtained possessory agreement of sale dated 15.02.1990 with regard to suit lands. It is also his case that in pursuance of the said agreement of sale he was put in possession of the property. It is also his case that he sought permission to mark the document and when the defendant took an objection with regard to admissibility of the document the trial Court impounded the document treating it as a sale agreement and directed him to pay Rs.2,35,896/- towards deficit stamp duty and ten times penalty o Rs.21,450/-. Dissatisfied with the said order he filed an application under Section 138(2) of the Indian Stamp Act, requesting the Court to send the document to the Registrar, Nalgonda for necessary orders. Accordingly, the document was sent to the Registrar, Nalgonda. The Registrar passed non-speaking order on

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03.10.1998. Dissatisfied with the same he filed writ petition in W.P. No.30012 o 1998 and this Court disposed of the said writ petition setting aside the impugned order of the Registrar and directing him to pass appropriate orders. Then the Registrar directed him to pay Rs.2,34,850/- towards deficit stamp duty by an order dated 01.06.2004. Challenging the same, he filed WP No.10525 of 2004 and this Court, by order dated 07.09.2004, directed him to approach the Registrar to pass appropriate orders. Then the Registrar determined the stamp duty at Rs.11,700/- and penalty of five times Rs.58,500/-, thus the total stamp duty is of Rs.70,200/-. It is also his case that accordingly he paid the deficit stamp duty, but in the meanwhile the trial Court decreed the suit on 29.11.1999 and aggrieved by the same, the defendants preferred an appeal and when the appeal was allowed he preferred the present second appeal. Then he filed an application to send the document to the Registrar in SAMP No.2527 of 2008 and this Court by an order dated 10.12.2008 allowed the said application and the document was sent to the registrar for impounding the document. The Registrar collected the deficit stamp duty of Rs.70,200/-. The specific case of the plaintiff is that the said document is not available with him till 06.05.2010 to file before this Court. Accordingly, he prayed to receive the agreement of sale dated 15.02.1990 and mark it as Ex.A8.

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As seen from the counter affidavit of the first defendant, her case is that she was not impleaded in any of the proceedings initiated by the plaintiff before the District Registrar or before this Court with regard to impounding of agreement of sale. It is also her case that the application to send the document for impounding is an after thought and only to cover up the laches of the plaintiff. It is further contended that the plaintiff did not take any steps to mark the document before the trial Court when the suit was pending and the application is filed only to protract the litigation. It is specifically denied that the plaintiff obtained possessory agreement dated 15.02.1990 and was put in

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possession of the property. Her specific case is that she is the owner of the property and she has been in continuous possession and enjoyment of the same. It is also contended that after the suit was decreed in favour of the plaintiff he has kept quiet to avoid the stamp duty and when appeal filed by her is allowed now he has taken steps to send the document for impounding and thereafter took two years time to pay the deficit stamp duty. It is also denied that the document was not available with the plaintiff till 06.03.2010. It is further contended that the plaintiff cannot be allowed to file the document at a belated stage and abuse the process of law.

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I n Chapala Chinnabbayi’s case (2 supra), this Court considered a reference wherein an application was filed under Order 41 Rule 27 CPC to receive additional documents which throw light on subsequent events in the second appeal. In the above referred decision it was opined that the High Court may permit any additional evidence in the second appeal where it appears that the same is in the interest of justice or same refer to the subsequent happenings or events which are relevant for disposal of the second appeal. Admittedly, in this case the document sought to be marked does not relate to the subsequent happenings or events. It is not the case of the plaintiff that the Court, from whose decree appeal is preferred, has refused to admit evidence which ought to have been admitted. It is also not his case that such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed by him against was passed.

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Having regard to the facts and circumstances of the case, it is clear that no useful purpose would be served by marking the certified copy of the agreement of sale dated 15.02.1990. As discussed earlier Exs.A3 to A6 reveal that the amounts referred in those receipts were paid much prior to the date of agreement or sale. The suit survey Numbers are 475, 477A, 477AA and 478, but the survey numbers mentioned in the agreement of sale are Sy.Nos.494, 495 and 496.

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Though the plaintiff averred that there is mistake in mentioning survey numbers in the agreement of sale, he has not whispered anything about such mistake in his evidence. Though there is reference about the delivery of possession in the said document, PW.1 did not speak about the delivery of possession of the suit lands on the date of agreement. Therefore, even if the document is marked the same will not serve the purpose of the plaintiff. In view of the same, I am of the view that there is no need to allow this SAMP. Accordingly, the SAMP No. 1160 of 2010 is dismissed.

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Point No.3:

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I have gone through the entire evidence. The plaintiff has been examined as PW.1. PW.1 did not whisper that the possession of the suit schedule land has been delivered to him on the date of agreement of sale dated 15.02.1990. He is silent with regard to crops raised in the suit land. It is not his case that he has leased out the property to some other person. There is no whisper as to whether the defendants tried to dispossess him. PW.4 admitted that the original pahani for the year 1991-92 is not traced. In the absence of tracing out original pahani, the pahani prepared by the VAO which is the basis for the plaintiff’s suit cannot be accepted. Moreover PW.5 was appointed as VAO on 10.02.1992. Admittedly, the land revenue receipt dated 31.12.1992 was issued by another VAO V. Narasimha Rao. Admittedly, the name of the plaintiff is not shown in the pahani 199293. Even as rightly contended by the learned counsel for the first defendant the agreement of sale is dated 15.02.1990. It is the case of the plaintiff that certain amounts have been paid to Lakshmi Auto Financiers as per the terms and conditions of the agreement of sale. Admittedly, Exs.A3 to A6 reveal that all the payments have been made prior to 15.02.1990. There is nothing on record to show that those payments have been made by the plaintiff to discharge the dues of Shaik Dastagiri in pursuance of agreement of sale. Thus, the

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pleadings and the evidence of the plaintiff are contradictory. According to the plaintiff, Ex.A7 agreement of sale is executed by him and defendants 2 and 3 in favour of one Gopaiah and it is dated 04.01.1992. Admittedly, there is no reference to Ex.A7 in the plaint averments. It is settled legal position that no volume of evidence can be considered in the absence of the pleadings. PW.2 did not speak about the delivery of possession. PW.3 has turned hostile. PW.4 has admitted that pahani for the year 1991-92 is not traced. A reading of entire evidence gives an impression that the plaintiff has utterly failed to prove that he was put in possession of the property as per the agreement dated 15.02.1990 or that he continued to be in possession of the property as on the date of filing of the suit. Admittedly, Ex.A2land revenue receipt was obtained just 10 days prior to filing of the suit. Therefore, no importance can be given to Ex.A2. This point No.3 is accordingly decided.

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Point No.1:

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As seen from the docket proceedings, this Court admitted the second appeal in view of the substantial question of law raised at ground Nos.2 to 6. Therefore, there is no substance in the contention of the learned counsel for the respondents that no substantial question of law has been framed in this appeal. Therefore, there is no need to consider the decisions relied on by the learned counsel for the first defendant.

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The substantial questions of law raised at ground Nos.2 to 6 of the memorandum of appeal are as follows.

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1. The judgment of the lower appellate Court is unsustainable because it has not considered material evidence.

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2. The failure of the Court’s below in not giving a finding with regard to the admissibility of the agreement of sale dated 15.02.1990 is unsustainable.

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3. The lower appellate Court’s drawing of adverse inference

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with regard to the alleged non-production of the agreement of sale dated 15.02.1990 vitiate the judgment.

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4. The lower appellate Court has misunderstood the case reported in (1998) 6 ALD 278, which resulted in its dismissing the appeal.

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5. The lower appellate Court ought to have seen that even without filing a suit for specific performance a suit for mere injunction is maintainable.

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One of the substantial questions of law raised in this appeal is as follows “The lower Appellate Court’s drawing adverse inference with regard to alleged non-production of agreement of sale dated 15.02.1990 vitiate the judgment.” Reliance is placed on J.N. Eranna Rao’s case (3 supra). In that case the defendants produced gate pass-book. An objection was raised to its reception and the objection was upheld. However, a presumption was drawn against the defendants for non-production of gate pass-book. This Court relying on the judgment of the Madras High Court in Sevugan v. Raghunatha^[20] , held that no adverse inference can be drawn from the fact that the gate pass-book for the month of July 1951 was not produced by the defendant in time.

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In this case also the plaintiff produced agreement of sale dated 15.02.1990 but when an objection was raised with regard to its admissibility the objection was upheld. Later the said agreement of sale was not produced. The lower appellate Court had drawn adverse inference for non-production of the agreement of sale, but the agreement of sale was in fact produced before the Court and as there was objection that it was not properly stamped the trial Court refused to mark the same. In the light of the above decision it appears that the observations of the appellate Court are not legally valid but however as discussed above even if the finding of the lower appellate Court drawing an adverse inference is found to be incorrect the Second

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Appeal cannot be allowed on that ground alone when it appears that the other findings of the lower appellate Court are based on proper appreciation of evidence. Therefore even if it is held that the lower appellate Court had committed a mistake in drawing adverse inference that circumstance alone will not come to rescue of the plaintiff.

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As far as the substantial question of law “the failure of the court’s below in not giving a finding with regard to admissibility of the agreement of sale dated 15.02.1990 is unsustainable” is concerned, the said ground is factually incorrect since the lower Court has already given a finding with regard to admissibility of the agreement of sale dated 15.02.1990, therefore this ground is not sustainable.

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The other ground that “the judgment of the lower appellate Court is unsustainable because it has not considered the material evidence” is concerned, learned counsel for the appellant has failed to show that the lower appellate Court has not considered any material evidence or misread the evidence. The lower appellate Court formulated the following points for consideration.

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1. Whether the first respondent/plaintiff was the owner, possessor and enjoyment of the suit land by the date of filing of the suit?

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2. Whether the plaintiff is entitled for perpetual injunction as prayed for?

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3. Whether the judgment and decree of the trial Court are illegal and if so the same are liable to be set aside?

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4. To what result?

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The lower appellate Court observed that even according to PW.1 and as per his plaint averments the balance sale consideration of Rs.12,000/- was to be paid by 31.03.1990. The plaintiff had not produced any documentary evidence to that effect that the balance sale consideration of Rs.12,000/- was paid as on that date. According to the first defendant, balance sale consideration to be paid is Rs.13,000/-. Admittedly, the plaintiff has not taken any steps to amend the pleadings. I have gone through the evidence of PW.1. PW.1 did

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not whisper in his evidence that he was ever ready or willing to pay the balance sale consideration amount to late Dastagiri or to the defendants 2 and 3. It appears that there was incomplete chiefexamination when he was initially examined on 29.10.1997. Subsequently he was recalled on 08.07.1999 but nothing is elicited in his evidence to show that he offered to pay the remaining balance sale consideration to late Dastagiri or to the defendants 2 and 3. Therefore, the findings of the lower appellate Court that the plaintiff has not produced any documentary evidence to show that he paid the balance sale consideration of Rs.12,000/- is based on record. The lower appellate Court also held that the plaintiff has failed to establish the alleged payment of sale consideration. As discussed, with regard to dates of payments under Exs.A3 to A6 it is clear that the plaintiff failed to substantiate his claim that the sale consideration amount was paid to Lakshmi Auto Financiers as per the terms and conditions of the agreement of sale. With regard to possession also the lower appellate Court came to the conclusion that the alleged possession on the date of filing of the suit is not proved. The lower appellate Court also discussed with regard to non-production of pahani for the year 1992-93 and non-availability of the said pahani in the MRO office and rightly came to the conclusion that the plaintiff failed to file any documents in support of his claim that he is in possession of the suit schedule property as on the date of filing of the suit.

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Learned counsel for the appellant has relied on H. Siddiqui’s case (6 supra). In that case the Apex Court held that “It is mandatory for the appellate Court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final Court of fact the first appellate Court must not record mere general expression of concurrence with the trial Court judgment rather it must give reasons for its decision on each point independently to that of the trial Court.”

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A reading of the judgment of the lower appellate Court gives an impression that it has appreciated the evidence and based its findings on the points formulated by it, of course it would have better if the lower appellate Court discussed the evidence in detail.

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The next substantial question of law raised is that, “The lower appellate Court has misunderstood the case reported in K. Venkata Rao v. Sunkara Venkata Rao^[21] , which resulted in dismissing the appeal.

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A fair reading of the said judgment reveals that this Court held that where the transferee under the agreement of sale failed to perform his part of contract i.e., in paying balance sale consideration to the transferors he is not entitled to claim protection under Section 53-A of the Act on the basis of part performance of the contract. The lower appellate Court held that the plaintiff in this case had not produced any documentary evidence to the effect that the balance sale consideration was paid to late Dastagiri or to his sons and therefore the above referred decision is applicable to the facts of the present case. In the above referred judgment it was also held that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of the contract and failed to seek the relief of specific performance of the agreement of sale and in such circumstances the plaintiff’s suit is not maintainable for the reason that the plaintiff has not sought for the relief of specific performance of the agreement of sale. Hence, it cannot be said that the lower appellate Court has misread, misunderstood or misquoted the above referred judgment.

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Point No.2: (Whether the suit for mere injunction is maintainable in the absence of any relief for specific performance under agreement of sale?)

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Learned counsel for the appellant has relied on Kuruvakotapaty Chinna Linganna’s case (5 supra). In that case the plaintiff

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purchased the property under an agreement of sale by paying the entire sale consideration on the same day and he was put in possession of the property. However, by the date of filing of the suit for injunction the suit for specific performance was barred by limitation. The brief facts of the case are that the plaintiff filed two different suits one for the relief of permanent injunction and another seeking the relief of specific performance of the agreement of sale. The substantial question of law came up for consideration is when the plaintiff failed to include the relief of specific performance in the suit for perpetual injunction filed by him whether it debars him from filing the subsequent suit for specific performance. On evidence, it was found that the plaintiff obtained possession of the schedule mentioned property in part performance of agreement to sell. It was observed as follows. “Merely because the suit for specific performance of contract is barred by limitation it cannot be said that the plaintiff has not been ready and willing to perform his part of contract.” It was further observed as follows. “The very fact that he paid the entire sale consideration indicates that there was nothing remained to be performed on his part. The plaintiff has not only a right to defend his possession in an action brought by the transferor or any person claiming under him, he can also institute a suit for injunction for the purpose of protecting his possession. Thus, it was observed that, the trial Court, therefore, obviously in error in holding that since the relief of specific performance of contract is not available to the plaintiff as it was barred by time, he is not entitled to protect his possession by filing a suit for permanent injunction against his transferors.”

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In the above referred decision the entire sale consideration amount was paid and possession was delivered. In the above circumstances it was held that the plaintiff can enforce his defence under Section 53-A of the Act against his transferors or any other person claiming under the transferor.

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In Shrimant Shamrao Suryavanshi’s case (4 supra) the Apex

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Court considered Section 53-A of the Act and observed that there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession. The necessary conditions are; (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. It was held that if the conditions enumerated above are complied with, the law of limitation does not come in the way of the defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation. In the said case, on evidence it was found that the transferee has taken possession over the property in part performance of the contract and that he was always and is still ready and willing to perform his part of the contract. He has not brought any suit for specific performance of the agreement to sell within the period of limitation. In the above referred case K. Venkata Rao’s case (21 supra) was not cited.

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This Court in Chellingi Narayanamurthy’s case (19 supra) has referred the cases Shrimant Shamrao Suryavanshi (4 supra), and K. Venkata Rao (21 supra) and finally came to the conclusion that the relief of injunction is an equitable relief and the same cannot be granted when the plaintiff has not established his readiness and willingness to perform his part of contract and failed to seek the relief of specific performance of agreement of sale. Similar view was expressed by this Court in K. Sudha Rani’s case (18 supra).

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Since the plaintiff failed to prove that there was delivery of possession of the property on the date of alleged agreement of sale

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and there is no evidence to show that subsequently he offered to pay the balance sale consideration amount to the defendants or has done some act in furtherance of the said agreement of sale and since he is silent with regard to his willingness to perform his part of contract it is clear that he is not entitled for protection under Section 53-A of the Act. The suit for perpetual injunction without seeking the relief of specific performance may be maintainable where in a case the plaintiff proves that there was delivery of possession and he continued to be in possession of the property or has done something in furtherance of the said agreement, but the suit for injunction is not maintainable where he commits default under an agreement of sale. This point is accordingly answered.

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It appears that during the pendency of the proceedings the first defendant died and SAMP No.3369 of 2012 is filed to bring the legal heirs of the first defendant on record. In the circumstances stated in the affidavit filed in support of the petition, the SAMP No.3369 of 2012 is ordered.

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In view of the above discussion, I do not find any irregularity or illegality in the judgment passed by the lower appellate Court warranting interference of this Court. There are absolutely no merits in the second appeal and the same is liable to be dismissed.

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Accordingly, the second appeal is dismissed. However, in the circumstances, no costs.

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As a sequel, miscellaneous petitions, if any, pending in this second appeal shall stand closed.

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B. CHANDRA KUMAR, J.

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Date: 11^th December 2013 Note: LR copy to be marked (B/O) Nsr

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