Dismissed

N.Sanjeeva Reddy, v. a.Rajanarsu

Telangana HC23 Mar 2023AS/3612/2004

Case brief

AI extract

What is this about?

Appeal against a decree for specific performance of a sale agreement. The High Court rejected claims of collusion and non-joinder, holding that the plaintiff proved execution of the agreement and readiness to perform.

What did the court decide?

Decree of the Lower Court confirmed; Appeal Dismissed.

What the court decided

N.Sanjeeva Reddy, Vs a.Rajanarsu — Contract and Commercial Disputes | Telangana HC (2023)

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[³²⁵⁸ ]

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IN THE HIGH COURT^{FORTHE STATE OF TELANGANA} AT HYDERABAD

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THURSDAY, THE^{TWENTY THIRD DAY OF MARCH} TWO THOUSAND^{AND TWENTY THREE}

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PRESENT

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THE HONOURABLE^{SRIJUSTICESAMBASIVARAONAIDU}

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APPE AL SUIT^{NO. 36120F2004}

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AppealunderSectiong6ofC.P.CagainsttheJudgmentandDecree,dated 28-07-2004 made^{in o.s.No.',l of 1998 on the file of the ll Addl.DistrictJudge,} Warangal.

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Between:

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N.Sanieeva Reddv,^{S/o Chinna Reddy, Aged about 61 years, Business} R/o. H. No. 1 1^{-26-16-8,Kothawada, Warangal Dist'}

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Smt. V. Lalitha,^{W/o lndrasena Reddy, aged about56.years'Ugl:gwife Fl/o} - orirt"i r.l".o, utc, APHB, Go6ami ltiagar, warangal, Warangal District'

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...APPELLANTS/DEFENDANTS^{NO.2& 3}

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AND

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Rl/o

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1. A.Raianarsu, S/o^{Komuraiah,aged about 56 years, Business} Kashibugga, Warangal.

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N.Suiatha Devi, W/o^{Seetharam Reddy' aged about61 years,Housewife'} nyo H.No.11-ZZ-194,^{Vasavi Colony, Warangal'}

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...RESPONDENTS

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Counsel for^{the Appellants:SRlS.SUBBAREODY} c$\

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Counsel for^{the Respondent# VNEKJAIN}

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The Court made^{the following:JUDGMENT}

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HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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A.S.NO.3612 ot 2OO4

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JUDGMENT :

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This appeal suit has been filed by the appellants under Section 96 of C.).C. against the ludgment and Decree in O.S.No.1 of 1998 on the file of II Addl. District Judge, Warangal, herein after will be referred as'Trial Court', where under the trial Court passed a Judgment and Decree in favour of the 1st respondent/plaintiff for specific performance of the sale agreement. The appellants are defendants No.2 and 3 in the above referred original suit and being aggrieved by the Judgment of the trial Court, they preferred this appeal suit on th,: following grounds.

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The Judgment and Decree of the trial Court is contrary to law, weight of evidence and probabilities of the case. The trial Court failed to consider the plaintiff came to the Court with unclean hands and alleged aqreement of sale was prepared in collusion with 1sr defendant and her husband. The trial Court ought to have seen that the suit is bad for non-joinder of necessary parties;, thereby could have dismissed the suit. The appellants furthe- claimed that the trial Court failed to consider certain admissions made by the plaintiff during his evidence before

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SSRN,J A S.No.3612 of 2004

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the trial Court. The appellants have^claimed that^the respondent/plaintiff admitted before^{the Court below thathe never} verified the^pahanies and other^{documents, telegraphnoticewas} issued only to the lst defendant on^{17-01-1987,the landinvolved} in the suit belongs to^{partnership firm and apart from the} defendants in the suit,^{there are 3 more persons and defendants} promised to bring the other^partners for execution of^the document, the date^{"15" was alteredas "19" in the agreementof} sale without any initials to that^{eFfect and he has got knowledge} that 1't defendant and^{her husband tried to sell away the property} to third^parties, but the trial^{Court failed to appreciatethe above} ad m ission s.

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The appellants further^{pleaded that the trial Court} ought to have seen that^{the respondent/plaintiff having filed an} interlocutory application^{vide I.A.No.131 of 2004 failed to send the} documents for^{comparisionof signaturesof defendants No.2 and 3} with their admitted signatures.^{The 1't defendant remained} ex pafte, thereby^{it showsthe collusion between the plaintiffand} defendant No.1.^{They have also claimedthat the trial Court ought} to have seen that the^{husband of defendant No.1, who was} examined as^{PW.2 deposedabout the alteration of date in the} agreement from^{"15" to "19".}

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5SRN,J A S.No.3612 of 2004

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The;rppellants have claimed that the Court below ought to have considered that the evidence of PW.2 is not trustworthy and I)W.3 deposed before the Court that he had seen PW.2 signing the agreement of sale which is not the case of plaintiff and PW.2. They have also claimed that the trial Court ought to have ser:n the husband oF 1st defendant, who is examined as PW.2 deposed before the Court that he does not know anything about the partne-ship of his daughter with defendants No.1 to 3, Malla Reddy and some others and that he does not know whether his wife is lookirg after the share of his minor daughter which manifest the attitude of PW.2, Therefore, on the above grounds, the appellant sou3ht for setting aside the ludgment and Decree of the trial Court and for dismissal of the suit.

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For convenience sake, the parties will be referred with the same nomenclature by which they were referred before the trial Co u rt.

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As could be seen from the material record and Judgment of the trial Court in O.S.No.1 of 1998, it shows the plaintiff has file(J the main suit for specific performance of agreement of sale. According to the averments made in the plaint/ it was the case of plaintiFf that there was an agreement between the plaintifF and defendants on 25-09-1996 in respect of land

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SSRN,] A.5 No.3612 0r 2004

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admeasuring Ac.03-20 gts forming part of Sy.Nos.577, 57g and 75 situated at Gorrekunta Village, Geesugonda Mandal of Erstwhlle Revenue District. The defendants have agreed to sell the above said property in favour of the plaintiff and the terms and conditions of the agreement were reduced into writing on 25-09-1996 and as per the said agreement, the sale consideration was fixed as Rs.6,50,000/- and the plaintiff has paid an amount of Rs.50,000/towards advance and he has to pay another amount of Rs.50,000/- within 15 days from the date of agreement. The plaintiff has to pay tl3'd of the sale consideration during the second week of November, 1996 and the balance shall be paid as per the measurements of the land by 19-01-1997 at the time of registration. If the plaintiff failed to pay the amount as indicated above, the agreement will be deemed to have been cancelled and the defendants need not refund the amount paid by the plaintiff and in case defendants failed to execute sale deed, they have to pay double the amount received by them and the land shall not be alienated to any other person during the pendency of cases. Therefore, the plaintiff has claimed that he paid Rs.50,000/- at the time of agreement and another amount of Rs.50,000/- on 11-10-1996 and paid a sum of Rs.1,0Q000/- on 15-11-1996, thereby, paid Rs.2,00,000/- to the defendants. However, inspite

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SSRN,J A.S.No.3612 of 2004

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of his repeated^(Jemands requesting the defendants to take steps for measuring and ascertaining the land available for conveyance, there was no pr(lper response by the defendants, thereby he got issued a telegraphic notice to the defendants on 17-01-1997. Even though the defendants received the notice did not take any steps. However, the plaintiFf continued his attempts to persuade the defendants to execute and complete their part of contract. The plaintiff clairred that he was ready and willing to perform his part of contract. However, the defendants did not evince interest to get the land measured to execute the registered sale deed. Therefore, the plaintifF got ssued another legal notice to the defendants on 02-07-1997 calling upon them to complete the transaction.

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Defendants No.2 and 3 gave a reply on 16-08-1997 and denied the execution of the agreement. They have further claimed that they don't have any land in Sy.No.575. When the plaintiff perused the Revenue Records, he could realise that the defendants are not having that much of land which they agreed to sell in the agre€,ment dated 25-09-1996 but it was less than Ac.03-20 gts. Tl-re defendants have suppressed the said fact. However, the plairtiff was ready to obtain registered sale deed for the land over whi':h the defendants have got titre and possession.

:'!t

ll{

S5RN,] A.S.No.3612 of 2004

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The defendants did not obtain any encumbrance certificate. Since the defendants denied the execution of sale agreement and as they were not ready to execute sale deed, the plaintiff filed the suit seeking specific performance of contract dated 25-09-1996.

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B. Out of the 3 defendants, defendant No.1 remained ex parte. Defendants No.2 and 3 have filed common written statement denying the material averments of the plaint and they have claimed that they never executed any agreement along with defendant No.1 in favour of the plaintiff. Defendant No.1 and her husband colluded with the plaintiff with a view to deprive the right of defendants No,2 and 3 and other persons, who have got right over the suit property. They have also claimed that even as per the plaint averments, the plaintiff was unable to pay 1/3'd of the amount as per the agreement, by November, 1996. While denying the other averments of the plaint, these two defendants have claimed that plaintiffs never approached them for measuring and ascertaining the true extent of land. They have not received any telegraphic notice dated 17-01-1997. There was no agreement between the plaintitt and defendants No.1 to 3.

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The defendants have further contended that the suit property along with some other immovable. property was owned by defendants No.1 and 2 and 3 more persons namely A.Mallareddy,

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I SSRN,J n.S.No.36l2 of 2004

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A.Soma Laxmi and M.Chetana, the daughter of defendant No.1. They have obl ained the property as a partnership firm. In terms of the deed of dissolution of partnership firm dated 17-03-1981, defr-.ndants No.2 and 3 and the remaining 3 persons got the suit land towards the settlement of their share. In terms of the said dissolrtion, defendant No.1 has gol 2Oo/o interest out of the suit land. t)eFendants No.2 and 3 have a similar extent of interest towards their share, remaining property was in the name of Mallareddy, Scma Laxmi, who have got 160lo each and Chetana a minor has got B^o/o interest in the property. Therefore, defendants No.2 and 3 are not competent to enter into any agreement to sell the suit land but the agreement is outcome of the collusion bet"veen the plaintiff and defendant No,1 and her husband Seetharam Reddy, thereby they sought for dismissal of the su it.

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On th,: basis of above rival contentions, the trial Court framed the following issues:

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1 Whethe r the defendants No.2 and 3 joined the executed of the suil agreement anC whether the agreement is foisted with co lusion between plaintiff and defendant No.1?

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2 Whethe' the defendants No.2 and 3 received the sale conside^ration ?

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S5RN,J A.S.No.3612 0f 2004

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3 Whether the defendants No.1, 2 and 3 only are the absolute owners of the suit property and whether any others also have right in the suit property?

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4 Whether the identity of the suit property is true and correct?

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5 Whether the suit is bad for non-joinder of necessary party?

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5 To what relieP

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During the trial, the plaintiff has examined 3 witnesses and marked Exs.A1 to A10. Defendants No.2 and 3 were examined as DW.2 and DW.1 respectively. The trial Court having considered the oral and documentary evidence placed before it, came to the conclusion that the plaintiff is able to prove his claim and passed a Decree directing the defendants to execute a registered sale deed for the land to an extent of Ac.02-30 gts by receiving balance sale consideration of Rs.4,50,000/- within 4 weeks from the date of Judgment. The plaintiff was directed to deposit the balance consideration into the Court within 2 weeks from the date of Judgment.

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Therefore, the following points arose for consideration in this appeal :

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1 Whether the trial Court failed to appreciate oral and documentary evidence placed by both parties and came to a wrong conclusion?

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2 Whether the plaintiff and defendant No.1 created the suit agreement by collusion and whether the said document is not binding on the defendants No.2 & 3 i.L., the appellants herein?

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;

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9 SSRN,J A S.No.3612 of 2004

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3 Whether the ludgment and Decree of the trial Court are liable to be se. asid e?

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POINTS

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As could be seen from the entire record, it shows that the first respondent/plaintiff has filed the main suit vide O.S.No.1 of 1998 before the trial Court seeking specific performance of agreement of sa e in respect of Ac.03-20 gts of land in Sy.Nos.75, 577, 578 of Gor-ekunta Village. As per the plaint averments and according to the evidence produced on behalf of the first respondent/plaintiff, it was hls specific claim that there was a contract for the s;ale of above said land i.e., suit schedule property between him and defendants No.1 to 3. The respondent/plaintiff has claimed that he has paid Rs.2,00,000/- out of the agreed sale consideration of Rs.6,50,000/- and obtained an agreement of sale from all the defendants which is marked as Ex.A1 before the trial Court. Subsequently, he came to know that the land owned by the defendants is less than Ac.03-20 gts and they have included the road adjacent to the suit Iand ,n the agreement, however, he was ready to obtain the sale deed for the actual land owned by the defendants. But they failed to come forward to execute the sale deed, thereby, hr: has got issued a telegram notice demanding the defendants to execute the sale deed and when there was no

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SSRN,J A.5.No 1612 of 2004

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response, he got issued another legal notice asking the defendants to execute the sale deed. The plaintiff by way of issuing the telegram notice and other legal notice marked as Exs.A2 and 46 expressed his willingness and readiness to obtain the sale deed. However, the defendants did not come forward to execute the docu ment.

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L4. Therefore, he filed the suit for specific performance, It seems, the first defendant remained ex parte. Defendants No.2 and 3 have contested the suit. The trial Court decreed the sult in favour of the respondent/plaintiff. Therefore, defendants No.2 and 3 have filed the appeal.

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According to the written statement filed by the defendants No.2 and 3 and as^per the evidence of the defendants who are appellants before this Court, they have taken a specific stand that they never entered into any sale agreement with the respondent/plaintiff. They have also claimed that apart from defendants No.1 to 3, there are three more owners of the^property namely A.Malla Reddy, A.Soma Laxmi and N.Chetana. The appellants have also claimed that first defendant,^{whois shownas} respondent No.2 in this appeal and his wife attempted to sell the suit property to one Vishwanatham in Septgmber, 1995 but due to their timely intervention, defendant No.1 and his wife could not

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SSRN,] A.S.No.3612 of 2004

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dispose of the land. They have also claimed that since the property is ownt:d by three more parties, the suit is bad for nonjoinder of necessary parties. The trial Court having framed appropriate issues based on the pleadings of plaintiff and defendants and having considered the oral and documentary evidence placed before it, believed the claim of respondent/plaintiff and passed a der:ree in his favour.

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As cc,uld be seen from the Judgment of the trial Court, it is very clear :hat the appe Iants/defendants No.2 and 3 have claimed that the suit schedule property was purchased joinfly by defendants No.1to 3 and also by three more persons. They have also claimed that they have not entered into any agreement of sale with the respondent/plaintiff . In view of the specific stand taken by both the parties, it is for the respondent/plaintiff to establish the execution of sale agreement, his readiness to obtain the sale deed from the ourners and the failure of the defendants to execute the sale deed. :;imilarty, it is for the appellants herein to show that they never entered into any sale agreement with the respondent/plaintiff, there are three more owners of the suit property and that the respondent/plaintiff is not entiiled to specific performance of sale ag reemen t.

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72 SSRN,] A.S.No.3612 of 2004

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In order to prove his claim, respondent/plaintiff has been examined as PW.1 and the first defendant has been examined as PW.2. He has also examined one M.Yugander, who has witnessed the execution of sale agreement by defendants as PW.3. The evidence placed before the Court clearly shows that defendant No.1 has got relationship with defendants No.2 and 3. Defendants No.2 and 3 have admitted before the trial Court that they have no disputes with defendant No.1. They have also admitted that they got visiting terms with defendant No.1, who was examined as PW.2. In the light of admission of defendant No.2 and 3 that they have got cordial relationship with defendant No.1 and in view of the relationship with defendant No.1, it is very clear that all the defendants have entered into agreement with the plaintiff for sale of suit property. The execution of sale agreement by all the defendants has been proved through the evidence of PW.2 i.e., one of the defendants and also by an independent witness, who is examined as PW.3.

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Even though the appellants have claimed that there are some more owners of the suit property, they have not placed any document in respect of the said ownership and no witness is examined in support of the said contention. According to the written statement filed by defendants No.2 and 3, it was

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55RN,J A.S.No.3612 of 2004

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specifically pleaded that defendants No.1 to 3 have got 20olo each share in the lancl whereas, Malla Reddy and his wife have got L6o/o each whereas, one Chetana qot Bolo share in the property. Even though they have taken a specific stand about the ownership of three more persons over the suit property, these appellants did not choose to^prrduce any document in support of the contention nor they have eramined the alleged co-owners of the property as witnesses before the Court. As seen from the evidence of DW.3, she along with other defendants purchased an extent of Ac.03.00 gts and odd to s,rt up a Rice Nlill but it was set up at a separate place and subsequently due to the disputes between the partners, the said Rice Mill was closed. The respondent/plaintiff has marked the sale deed obt,rined by defendants No.1to 3 as Ex.A10 to show the right of defendants No.1 to 3 over the suit schedule property. As per the recitals of Ex.A10, rt is very clear that the appellants and defendant No.1 have purchased the suit property and there were no other sharers in the land. The contents of Ex.A1 sale agreement have treen proved not only by the respondent/plaintiff but also by PWs.2 and 3.

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In or(ler to prove the contents of Ex.A1, the respondent/plaintilf has cross-examined defendant No.3, who is examined as DW.l.. As rightly observed by the trial Court, this

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SSRN,] A.S.No.3612 of 2004

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witness only to escape the sale agreement gone to the extent of denying her signatures on the vakalath and written statement filed before the Court. Apart from the oral evidence of pWs.1 to 3, the respondent/plaintiff has marked the office copy of telegram notice and legal notice got issued by him to the defendants. The respondent/plaintiff expressed his readiness and willingness to complete his part of contract through these notices. But the appellants failed to respond.

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The learned counsel for the appellant while placing reliance on a Judgment between 'Bhavyanath represented by its power of Attorney Holder vs. K.V.Balan (Dead) through Legal Representatives'l , has argued that :

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'In a suit for specific performance, it is for the plaintiff to prove his readiness and willingness to obtain the sale deed. The plaintiff has to prove financial capacity to pay the sale consideration. In the absence of such evidence, it cannot be said that the plaintiff was ready and willing to obtain sale deed'.

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In the case on hand, as already stated in the previous paragraphs, it is very clear that the respondent/plaintiff got issued two legal notices and demanded the appellants as well as the other defendant to execute sale deed after receiving the balance sale consideration. Therefore, the evidence placed before the Court

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' IZOZO<sup>tt Supreme CourtCases790

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SSRN,J A.s.No.3612 of 2004

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clearly shows that the respondent/plaintiff was ready and^{willing to} obtain the sale deed but the,:ppellants and the other^defendant dodged the matl.er without executing the sale deed.^Therefore, the trial Court r ghtly^passed a decree in favour of the^plaintiff. The evidence^placed before the Court clearly shows that^the appellants having taken a specific stand that there are three^more owners of the^property did not choose to examine them as witnesses before the Court.^The cross-exa mination of witnesses examined on behalf of the appellants further strengthen the case of respondent/plaintiff. The oral evidence of PWs.1 to 3 coupled with Exs.A1 to A10 proved the contention of respondent/plaintiff. Therefore, there are no merits in the appeal and it is liable to be d ism issed .

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In thr: result, the appeal is dismissed.

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Consequenl ly, Miscellaneous applications if any, are closed.

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No costs.

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SD/.T.SRINIVAS DEPUTY REGIS/RAR

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//TRUE COPY//

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sEcroN tlFrtcen

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To, 1. The ll Addl. District Judge, Waranglal. 2. One CC to SRI S.Subba Reddy, Advocate [OPUC] 3. One CC to SRI VI/EK JAIN Advocate IOPUCI 4. Two CD Copies. BSK

I I ,

HIGH COURT

DATED:2310312023

JUDGMENT

AS.No.3612 o12004

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DISMISSING THE APPEAL WITHOUT COSTS.

?1e9
g\ae

[³²⁵⁸ ]

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE TWENTY THIRD DAY OF MARCH TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVARAO NAIDU

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APPEAL SUIT NO.3612 OF 2OO4

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Between:

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N.Sanjeeva Reddy, S/o Chinna Reddy, Aged about 61 years, Business R/o.H.No.1 1-26-168, Kothawada, Warangal Dist.

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Smt. V. Lalitha, Wo lndrasena Reddy, aged about 56 years, House wife Fl/o Quarter No.6, HlG, APHB, Gowtami Nagar, Warangal, Warangal District.

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...APPELLANTS/DEFENDANTS NO.2 & 3

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AND

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A.Rajanarsu, Sio Komuraiah, aged about 56 years, Business Fl/o Kashibugga, Warangal.

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2 N.Sujatha Devi, Wo Seetharam Reddy, aged about 61 years, House wife, Ryo H.No.11-27-194, Vasavi Colony, Warangal.

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...RESPONDENTS

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Appeal under Section 96 of C.P.C against the Judgment and Decree, dated 28-07-2004 made in O.S.No.1 of 1998 on the file of the ll Addl. District Judge, Warangal.

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ORDER : This Appeal coming on for hearing and upon perusing the grounds of appeal, the Judgment and Decree of the Lower Court and the material papers in the case and upon hearing the arguments of Sri S.Subba Reddy, Advocate for the Appellant and Sri Vivek Jain, Advocate for the Respondents.

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THIS COURT DOTH OTRDER AND DECREE that the Decree of the Lower Court be and hereby is CONFIRI/ED and this Appeal is DISMISSED.

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THIS COURT DOTH FLjRTHER ORDER AND DECREE that there be no order as to costs in Appeal.

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//TRUE COPY//

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SD/.T.SRINIVAS DEPUW REGISTAAR v/It' SECTION OFFICER

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To, '1 . The ll Addl. Distri:t Judge, Warangal 2. Two CD Copies. BSK

HIGH COURT

DATED:2310312023

DECREE

AS.No.3612 of 2004

DISMISSING THE APPEAL WITHOUT COSTS.

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@u{'+ $'o \a3

N.Sanjeeva Reddy, v. a.Rajanarsu

Case brief

What is this about?

What did the court decide?

What the court decided

N.Sanjeeva Reddy, v. a.Rajanarsu

Case brief

What is this about?

What did the court decide?

What the court decided

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