In this second appeal concerning specific performance of a sale agreement, the High Court rejected the appellant's plea about suit valuation and refusal to re-appreciate evidence, holding no substantial questions of law arose as the plea was raised for the first time.
Second Appeal dismissed; no order as to costs; miscellaneous petitions closed.
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 A. RAJASHEKER REDDY
Second Appeal No.439 of 2014
ORDER:
This Second Appeal is filed aggrieved by the judgment and decree dated 03.01.2014 in A.S.No. 97 of 2012 passed by the Court of IX Additional District Judge, Wanaparthy, Mahboobnagar District confirming the judgment and decree dated 11.07.2012 in O.S.No.15 of 2008 passed by the Court of Senior Civil Judge, Nagarkurnool wherein the suit filed for specific performance (agreement of sale) was decreed.
The brief facts of the case are as follows:
The respondents/plaintiffs filed the O.S.No.15 of 2008 for specific performance of sale stating that defendant is the exclusive owner and possessor of an extent of Ac.2-03 gts of land covered by different survey numbers and he approached the plaintiff with an offer to sell it and the plaintiffs, who are the real estate people, accepted the said offer and settled the price at Rs.1,35,000/- per acre and both entered into an agreement of sale on 24.12.2004 and delivered possession of the land to the plaintiffs. On the date of agreement Rs.20,000/was paid towards advance of sale consideration and the balance of sale consideration of Rs.2,60,125/- was agreed to be paid in two equal instalments and first instalment date was fixed as 24.7.2005 and the second instalment date was fixed as 24.11.2005. But the defendant, even before the due date of first instalment approached the plaintiff on 29.04.2005 and collected Rs.40,000/- and evidencing it he endorsed on the backside of the agreement of sale dated 24.12.2004. After the expiry of first date of instalment the defendant has not come forward to receive the balance of sale consideration. Against the same, the plaintiffs were constrained to issue a legal notice on 02.01.2008 and having received it, the defendant neither replied nor complied the notice. Hence, the plaintiffs filed suit for enforcement of the agreement of sale dated 24.12.2004 with a direction to the defendant to execute registered sale deed in terms of it by receiving the balance of sale consideration.
While denying the plaint averments, the defendant in his written statement admitted that he is the owner of the suit schedule property. The defendant contends that the schedule land is ancestral property in which himself, his son and two daughters are entitled for equal shares and the suit filed by his
daughters in O.S.No.99/2005 was decreed on 29.09.2006. He further contends that since the market value of suit land was Rs.4 to 5 lakhs per acre in the year 2004 itself, the question of agreeing to sell the same at Rs.1,35,000/- per acre to the plaintiffs does not arise. The defendant also contends that though plaintiffs obtained his signature on the agreement dated 24.12.2004, but failed to pay the balance amount at stipulated dated i.e., on 24.07.2005 and 24.11.2005. The claim of the plaintiffs that the possession of the land was delivered to them on 24.12.2004 is false. Since the plaintiffs never complied to the terms of the agreement, the question of positive response from the defendant does not arise and hence they are not entitled for execution of registered sale deed in respect of schedule property in their favour. The defendant further contended that the plaintiffs have not expressed their willingness to perform their part of contract. In the agreement there are over writings, additions which shows that it is a manipulated document. Both the daughters of the defendants got issued legal notice to the plaintiffs on 25.10.2005 and having received the same, the plaintiffs did not chose to reply. The plaintiffs are realtors who are capable of obtaining signatures either on blank papers or by leaving enough space in the document to fill later according to their will. The defendant is innocent and ignorant and plaintiffs are taking advantage of it and hence, the plaintiffs are not entitled for any relief and suit is liable to be dismissed with costs.
The trial Court decreed the suit in favour of the respondent/plaintiffs and A.S.No.97 of 2012 filed by the appellant/defendant is also dismissed. Hence, the present Second Appeal is filed.
The only contention raised by the appellant is that the suit is valued for Rs.2,60,125/- but the alleged total sale consideration is for Rs.2,80,000/- and odd and in a suit for specific performance of sale, when the suit is under valued, the trial Court ought not to have numbered the suit on that ground itself and the suit should have been dismissed.
The evidence of PW1 is in consonance with the plaint pleadings and the evidence of PW2 who is document writer shows that both the plaintiffs and defendant approached him on 24.12.2004 to prepare an agreement for sale of schedule land by defendant in favour of the plaintiffs. Accordingly, he prepared Ex.A1 agreement on the stamp paper and in his presence an amount of Rs.20,000/- was also paid by the plaintiffs to the defendant as part of sale
consideration and balance of sale consideration was agreed to be received by the defendant in two equal instalments. In the cross-examination it was brought out that there are corrections in the agreement with regard to numerical numbers of sale consideration and the explanation given by PW2 is that there was no alteration with regard to corresponding numbers in the words in the agreement. Another alteration is with regard to extent from Ac.2-00 to Ac.2-03 gts and the alterations in Ex.A1 were initiated by PW2 as its scribe. The evidence of PW2 also shows that PW2 after verifying the pass book and title deeds of the defendant, he has mentioned the survey numbers in the agreement with corresponding extent. The evidence of defendant himself in the cross-examination shows that he is not having any disputes with the plaintiffs. The defence raised by the defendant in the written statement is that he is not exclusive owner of the schedule land, his son and daughters are entitled for shares and his daughters also obtained decree against him. In a suit for specific performance, enquiry scope is very limited. Hence, it is not necessary in the present case to enquire whether the defendant is absolute owner of the schedule land and entitled to sell or convey it by registered sale deed in favour of the plaintiffs.
The appellate Court after reconsidering the evidence of PW1 and PW2 and Ex.A1 and having gone through the evidence of plaintiffs and also defence taken by them, came to the same conclusion and confirmed the judgment of trial Court and the said conclusion cannot be disturbed by re-appreciating evidence in the Second Appeal.
The plea raised by the learned counsel for the appellant in this second appeal and substantial questions of law raised on that ground cannot be considered in this second appeal since such plea is not taken by the appellant/defendant before the Courts below and such plea cannot be raised for the first time without factual foundation. More so, other aspects are raised in the grounds of appeal under substantial questions of law, the same are not raised before the Courts below. As such other grounds relating to appreciation of evidence cannot be considered as this Court cannot re-appreciate the evidence by exercising power under Section 100 of Civil Procedure Code.
In view of the same, no substantial questions of law arises in this second appeal. As such, I do not see any ground to entertain the appeal. Accordingly, Second Appeal is dismissed.
There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_____________________________ A. RAJASHEKER REDDY, J Date: 14.10.2014 dv
3 issues framed by the court
Whether the Subordinate Courts erred in disregarding the appellant's plea regarding suit valuation under Section 100 CPC for the first time in second appeal.
Whether fresh appreciation of evidence is permissible in a second appeal when the appeal is based on a plea not raised below.
What is the outcome of a second appeal filed without substantial questions of law arising?
1 provisions across 1 enactments
Appellant
Respondents/Plaintiffs
A. RAJASHEKER REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
