Second appeal in specific performance suit regarding sale of father’s share. Trial court and first appeal court decreed suit based on agreement of sale; limitation and settlement pleas failed due to lack of evidence. Appellant’s appeal dismissed.
Second appeal dismissed; miscellaneous petitions disposed of; no order as to costs.
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THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No. 760 OF 2013
Dated:08-10-2014
Between:
Sri B. Venkateshwar Rao
... PETITIONER
AND
Sri B. Seshagiri Rao
.. RESPONDENT
THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY
SECOND APPEAL No. 760 OF 2013
JUDGMENT:
The defendant in O.S No. 1966 of 2006 on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad filed this second appeal.
The appellant and the respondent are brothers. Their father acquired premises in house No.16-11-511/D/184, Shalivahananagar, Moosarambagh, Hyderabad. During his life time, he is said to have settled the property in four shares and one share each is said to have been allotted to the appellant and the respondent. The father of the parties died on 17-01-1992. The appellant executed an agreement of sale in favour of the respondent on 06-09-1997 for sale of his share of the property to the respondent, for a sum of Rs.97,000/-. The entire amount is said to have been paid in instalments over the period. The respondent got issued a notice dated 24-07-2006 calling upon the appellant to execute the sale deed. Stating that the appellant did not accede to his request, the respondent filed the suit for specific performance of agreement of sale dated 06-09-1997.
The appellant filed a written statement opposing the suit. He did not dispute the execution of the agreement of sale and
receipt of consideration. However, his case was that a settlement was arrived at between the parties in a meeting held on 22-062006 wherein it was decided to cancel the agreement of sale.
The trial Court decreed the suit through judgment dated 0810-2009. Aggrieved by that, the appellant filed A.S No. 279 of 2010 in the Court of IX Additional Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed on 19-06-2013. Hence the second appeal.
Heard Sri B. Vijaysen Reddy, learned counsel for the appellant and Sri G. Anandam, learned counsel for the respondent.
On the basis of the pleadings before it, the trial Court framed the following issues for consideration:
2. Whether the plaintiff is entitled for specific
performance of agreement of sale as prayed for?
3. Whether suit is barred by limitation?
4. To what relief?”
The respondent deposed as PW 1 and he filed Exs.A-1 to A- 6. No oral or documentary evidence was adduced by the appellant. On the suit being decreed, the appellant filed A.S No. 279 of 2010 and therein, the lower appellate Court framed the following points for consideration:
2. Whether there are any reasonable grounds
to interfere on the lower court judgment by this court?
3. To what relief?”,
and the appeal was dismissed.
This is one strong reason on account of which the appellant cannot succeed in this appeal. On receiving summons in the suit, the appellant entered appearance and filed a written statement. The contents of the written statement can be taken to have been proved or at least asserted by the defendant, if only, some one connected therewith enters the witness box and speaks about them. Unless spoken to by the witness, the contents of the pleadings do not get acceptability. The only exception is when the other party admits the contents of the pleadings. In such cases the necessity for the latter to adduce evidence to the extent of admission is obviated.
Be that as it may, the suit is based upon the agreement of sale marked as Ex.A-2. The plea of the respondent that the amount mentioned therein was paid in its entirety was not disputed by the appellant. Though the plea of limitation in filing the suit was raised and an issue was framed thereon, the appellant did not prove it. It is too well known that limitation is a mixed question of fact and law and it is only when the relevant facts are established that the connected principle of law gets attracted. An attempt was made to plead that time was essence of contract. The trial Court and the lower appellant Court repelled the same by applying the established principle of law that time can never be treated as essence of contract in a transaction relating to immovable property.
The appellant has also raised a plea based upon a settlement/panchayat which is said to have taken place on 22-062006, within the family. Let alone the persons connected therewith, but even the appellant did not choose to speak about it by entering the witness box. Hence, there was no way that Ex.A-2 could have been ignored. This Court does not find any basis to interfere with the concurrent findings of fact and no substantial question of law, arises for consideration in this second appeal. The second appeal is accordingly dismissed. The miscellaneous petitions filed in this second appeal shall also stand disposed of. There shall be no order as to costs.
___________________________ L. NARASIMHA REDDY, J 08-10-2014 ks Note: LR Copy to be marked. B/O ks
3 issues framed by the court
Whether the second appeal warrants interference given the evidence on record regarding the agreement of sale.
Whether plea of limitation or family settlement affects the enforceability of the agreement of sale.
Whether substantial question of law arises requiring consideration in the second appeal.
Sri B. Venkateshwar Rao
Sri B. Seshagiri Rao
L. Narasimha Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
