IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH
TUESDAY, THE EIGHTH OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AS.No.729 of 1996 Between :
C.V. Mohiruddin Koya (Died) per LRs (Appellants Nos. 2 to 7). Vs.
…Appellant/Appellant Khasa Yamunavati, W/o.Late Venkatarao, Aged about 35 years, R/o.Visakhapatnam, C/o.Sri S.V. Ramdas, Patrudu Colony, Pilalchavani Palem, Visakhapatnam District and others.
…Respondents/Respondents Counsel for legal representatives of the Appellant : Sri K.V. Subrahmanya Narusu Counsel for respondent Nos.1 to 5 : Sri Gudapati Venkateswara Rao The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AS.No.729 of 1996 JUDGMENT :
This appeal is filed under Section 96 of CPC challenging the judgment and decree dt.19.12.1994 in OS.No.186 of 1987 on the file of the Sub-Ordinate Judge, Bobbili.
2. The appellant herein is the plaintiff in the above suit.
3. The above suit was filed for specific performance of an agreement of sale Ex.A.1 dt.18.01.1980, executed by the husband of 1st respondent by name late Khasa Venkatarao (for short, ‘Venkatarao’), who is also the father of respondent nos.2 to 5.
4. The plaint schedule property is a shop building belonging to Venkatarao who also owned other properties. The said building was leased to plaintiff in the year 1976 on a monthly rental of Rs.70/- and plaintiff was running a coffee and meals hotel under the name and style of ‘New Murali Café’.
5. According to plaintiff, he had given an advance of Rs.6,000/- to Venkatarao and had also agreed to pay Rs.2,460/- which were the arrears payable by the previous lessee K. Das of the plaint schedule property. In addition, he incurred certain expenditure to the tune of Rs.20,000/- for carrying out repairs to the plaint schedule property. In all, the said Venkatarao owed him Rs.29,090/-. According to plaintiff, subsequently there were some negotiations between the said Venkatarao and one Pasumarti Subbarao regarding the sale of the plaint schedule property to the said Subbarao and the said Subbarao offered to pay the sale price of Rs.64,090/- for the plaint schedule property, undertook to discharge the debt of Rs.29,090/- to the plaintiff and to pay the balance to Venkatarao. The plaintiff contended that subsequently Venkatarao changed his mind and disagreed to sell the plaint schedule property to Pasumarti Subbarao on the ground that it would cause inconvenience and harassment to plaintiff; that he told plaintiff that he would be glad to sell the plaint schedule property to plaintiff for a lesser amount by Rs.5,000/- i.e., for Rs.59,090/- and receive Rs.30,000/- towards balance sale price after deducting the debt of Rs.29,090/- which is due to plaintiff from Venkatarao; and to that effect he executed Ex.A.1 Agreement-of-Sale on 18.01.1980. According to plaintiff, it was conveyed to him by Venkatarao in June, 1980 that he should get ready with a sum of Rs.30,000/- and whenever plaintiff wanted the registration of the sale deed, it would be done. Subsequently, Venkatarao died and defendants, as his class-I heirs, started enjoying the properties. The plaintiff contended that in May 1987 he approached 1st respondent and requested her to execute a sale deed in his favour and receive Rs.30,000/- but she did not do so, and therefore, he had to file the present suit. The 6th defendant is the step-brother of Venkatarao who died pending suit and his legal representatives were added as defendant nos.7 to 10 in the suit.
6. The 1st defendant filed a written statement which was adopted by defendant nos.2 to 5 stating that Venkatarao died in 1981 and that the agreement of sale is not true, valid and binding on them. She also denied her liability to pay the sum of Rs.29,090/- made by plaintiff.
7. The 6th defendant filed another written statement opposing the suit claim contending that the plaint schedule property is the ancestral property of defendants and denied the truth and validity of Ex.A.1. He contended that even if it is true and valid, there is no unequivocal undertaking by Venkatarao to sell the plaint schedule property to plaintiff; that Ex.A.1 would show that Venkatarao agreed to sell the same to plaintiff at a concessional rate, in case he decided to sell it; and denied that in June 1990 Venkatarao informed plaintiff that he should get ready with the balance sum of Rs.30,000/-.
8. Defendant nos.7 to 10 filed a memo on 03.09.1992 adopting the written statement of 1st defendant.
9. The trial court framed the following issues :
“1. Whether the suit agreement to sale is true, valid and binding on the defendants ?
2. Whether the plaintiff’s claim for recovery of Rs.29,090/- is valid?
3. Whether the 6th defendant is legitimate son of late Khasa Satyanarayana ?
4. Whether the defendants are liable to execute the sale deed in favour of the plaintiff ?
5. Whether the suit agreement is an agreement to sell executed by late Venkatarao agreeing to sell the suit property to the plaintiff as stated in the plaint ?
6. Whether the plaintiff is entitled to the specific performance as prayed for ?
7. Whether the plaintiff is entitled to the specific agreement?
8. To what relief ?”
10. The plaintiff examined PWs.1 to 3 and marked Exs.A.1 to A.10. The defendants did not adduce any oral evidence but marked Ex.B.1.
11. By judgment and decree dt.19.12.1994, the trial court dismissed the suit as regards relief of specific performance and only decreed the claim of plaintiff by Rs.29,090/- with costs.
12. It held that even though execution of Ex.A.1 is proved, the recitals in Ex.A.1 indicated that Venkatarao would sell the property to plaintiff only if he had decided to so sell and that under Ex.A.1 there is no unequivocal undertaking to sell the property to plaintiff; that although plaintiff contended that Venkatarao had agreed to sell the plaint schedule property under Ex.A.1, recitals in Ex.A.1 did not support his plea. Although plaintiff relied on Ex.A.2 receipt dt.03.02.1980 and sought to contend that under Ex.A.2 Venkatarao had agreed to sell the plaint schedule property to him, the trial court did not accept the said plea because Ex.A.2 was not pleaded in the plaint; and in the absence of a plea that the agreement to sell executed by Venkatarao was Ex.A.2 and not Ex.A.1, it held that no relief can be granted to plaintiff; and that plaintiff did not even issue notice to defendants or to Venkatarao before filing the suit and the suit itself was filed in the year 1987. It held that Venkatarao owed a sum of Rs.29,090/- to plaintiff and even under Ex.A.1 he agreed to discharge this liability and so the plaintiff is entitled to recover the sum of Rs.29,090/- only and not to the relief of specific performance.
13. Challenging the said judgment, this appeal is filed.
14. Pending appeal, the plaintiff/appellant died and his legal representatives have been brought on record.
15. Heard Sri K.V. Subrahmanya Narusu, counsel for legal representatives of the appellant; and Sri Gudapati Venkateswara Rao, counsel for respondent nos.1 to 5.
16. The counsel for appellant contended that the judgment and decree of the trial court are unsustainable and that the trial court erred in holding that there is no unequivocal undertaking to sell the plaint schedule property under Ex.A.1; that a conjoint reading of Ex.A.1 and Ex.A.2 would disclose that Venkatarao did agree to sell the plaint schedule property to plaintiff; the court below erred in ignoring Ex.A.2; and that it ought to have granted the relief of specific performance instead of only recovery of a sum of Rs.29,090/-.
17. On the other hand, the counsel for respondent nos.1 to 5 supported the judgment of the trial court and contended that there was no unequivocal undertaking by Venkatarao to sell the plaint schedule property to plaintiff, and therefore, there cannot be any specific performance of Ex.A.1 agreement of sale; that there was no pleading about Ex.A.2 at all; and in the absence of any plea that there was a promise to sell under Ex.A.2, no relief can be granted on the basis of Ex.A.2.
18. I have noted the submissions of both sides.
19. Admittedly, Ex.A.1, on the basis of which the suit is filed for specific performance by plaintiff, contains a recital that Venkatarao owed a sum of Rs.29,090/- to plaintiff; that one Pasumarti Subbarao had offered to purchase the plaint schedule property from Venkatarao for a sum of Rs.64,000/-; that Venkatarao was unwilling to sell it to Subbarao and that in case he decides to sell the plaint schedule property, he would sell it to plaintiff by Rs.5,000/- less than what was offered by Subbarao. From these recitals it is clear that at the time of execution of Ex.A.1 Venkatarao had not actually decided to sell the property to plaintiff. It indicates that such a decision was to be taken at a later point of time. Although PWs.1 to 3 sought to contend that the recitals in Ex.A.1 amount to an unequivocal undertaking to sell the plaint schedule property to plaintiff, the recitals in Ex.A.1 being otherwise, the oral evidence of PWs.1 to 3 on this count cannot be accepted.
20. Admittedly, plaintiff has only relied on Ex.A.1 in his pleadings as the basis for the suit for specific performance. There is no reference to Ex.A.2 receipt dt.03.02.1980 allegedly executed by Venkatarao in the plaint. Ex.A.2, no doubt, contains a recital that in case Venkatarao was unable to pay Rs.30,000/- by 18.01.1981 he would execute a sale deed in favour of plaintiff. But the defendants had no knowledge about Ex.A.2 at the time when they filed the written statement and had no opportunity to dispute it either. It is settled law that in the absence of any pleading no amount of evidence can be looked into. In this view of the matter, Ex.A.2 cannot be relied upon by plaintiff in support of his plea for specific performance on the basis of Ex.A.1 agreement.
21. In my opinion, the trial court has correctly appreciated the legal and factual aspects arising in the case and declined to grant relief of specific performance to plaintiff.
22. I do not find any merit in the appeal and the same is accordingly dismissed, but in the circumstances without costs.
23. Miscellaneous applications, pending if any, in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 08-07-2014 Ndr/*