IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
WEDNESDAY THIS THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY A.S.No.204 of 1997 Between:
Dongre Khader Sab and another . APPELLANTS And Penumacha Satyanarayana Raju and another . RESPONDENTS The Court made the following:
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY A.S.No.204 of 1997
JUDGMENT:
Defendants Nos.1 & 2 in O.S.No.79 of 1989 on the file of the Subordinate Judge’s Court, Adoni preferred this appeal challenging the alternative relief granted by the trial Court for refund of Rs.75,035/- in a suit filed for specific performance of an agreement of sale dated 29.04.1986.
2. For convenience of reference, the ranks given to the parties in O.S.No.79 of 1989 by the Subordinate Judge’s Court, Adoni will be adopted throughout this judgment.
3. The plaintiff filed the suit for primary relief of specific performance of agreement of sale and alternative relief of refund of advance sale consideration of Rs.75,035/- together with interest alleging that defendants Nos.1 and 2 are the wife and husband and alleged owners of the schedule property of an extent of Ac.6.98 cents situated in Sy.No.1007 pyke, Kowthalam village. The 3rd defendant is the brother of the plaintiff who allegedly purchased Ac.4.00 of land out of the land purchased by the plaintiff from defendants Nos.1 and 2 under a registered sale deed dated 27.05.1986.
4. The plaintiff purchased the schedule property under an agreement of sale dated 29.04.1986 from defendants Nos.1 and 2 for Rs.68,500/-and paid Rs.500/- towards advance. As per the terms and conditions of the agreement, the plaintiff agreed to pay the balance sale consideration on or before 01.12.1986 in two installments, the first installment of Rs.40,000/- shall be paid by 01.07.1986 and the balance by 01.12.1986. The plaintiff also agreed to pay interest @18%. The 1st defendant received Rs.17,000/- Rs.23,000/- and Rs.10,000/- on 27.05.1986, 01.07.1986 and 01.12.1986 respectively under the agreement of sale, endorsed those payments on the reverse of agreement of sale on the respective dates. Thus, plaintiff totally paid Rs.50,500/- as advance of sale consideration in terms of the agreement of sale. The balance to be paid is only Rs.18,000/-. The plaintiff demanded defendants Nos.1 and 2 to receive the balance of sale consideration and execute registered sale deed, expressing his readiness and willingness to pay the balance sale consideration and obtain the registered sale deed, but defendants Nos.1 and 2 did not cooperate for execution of registered sale deed.
5. While the matters stood thus, defendants Nos.1 and 2 executed a sale deed in favour of 3rd defendant on 27.05.1986 conveying Ac.4.00 of land out of the land covered by the agreement of sale executed by them in favour of the plaintiff. The 3rd defendant is not a bona fide purchaser as he purchased the property with knowledge about the agreement of sale executed by defendants Nos.1 and 2 in favour of the plaintiff. The said document is only nominal and never acted upon. Hence, the sale is not binding on the plaintiff and prayed to pass a decree in his favour granting primary relief of specific performance and in the alternative for payment of Rs.50,500/- together with interest.
6. The 1st defendant filed written statement contending that the agreement is not enforceable under law, as the 1st defendant did not execute any such document agreeing to sell the schedule property. The document is materially altered and the signature of the 2nd defendant was forged on the alleged agreement of sale. The plaintiff took possession and cultivated the land but raised a false plea that possession was not delivered. No notice was issued before filing the suit demanding the defendants Nos.1 and 2 to execute a registered sale deed.
7. It is further contended that the 3rd defendant purchased the schedule property with knowledge about the subsisting agreement of sale between the plaintiff and defendants Nos.1 and 2, but no consideration was passed under the sale deed obtained by the 3rd defendant. Now the 3rd defendant and plaintiff colluded with one another and to harass the 1st defendant filed the present suit. In view of the above circumstances, the plaintiff is not entitled to primary relief of specific performance and that plaintiff did not choose to deposit the balance of sale consideration into Court and approached the Court suppressing the real facts.
8. It is further contended that the sale deed in favour of the 3rd defendant was executed only at the instance of the plaintiff and he also executed “Hami Dasthaveju” on 01.01.1987 expressing his desire to get a sale deed in favour of the 3rd defendant in the presence of Alla Bakash, and Guru Lingaiahswamy. One K.B.Sreeramulu, resident of Adoni is the scribe of the said document. Thus, the 1st defendant contended that he is not liable to refund Rs.75,035/- and prayed to dismiss the suit against the 1st defendant.
9. The 2nd defendant also filed a separate written statement contending that she never signed on the agreement of sale and she is not a party to the agreement of sale. She is the Paradanashin lady and never signed on the document. But Mahaboob Basha who was sought to be made a party to the agreement did not join in the execution and when no explanation was offered by the plaintiff in that connection, when the Xerox copy of which 2nd defendant was in possession of such agreement did not contain her signature or that of Mahaboob Basha and also that of the attestors. She claimed that such document is materially altered one and not enforceable under law. She further contended that she never received consideration under the agreement of sale, the 1st defendant alone received the amount as advance of sale consideration and that the plaintiff is not entitled to claim any relief against her and prayed to dismiss the suit against her.
10. The 3rd defendant filed separate written statement contending that he is a bona fide purchaser of Ac.4.00 of land from defendants Nos.1 and 2 for Rs.33,200/- and he is in possession and enjoyment of the land purchased by him since the date of purchase. The land purchased by him is free from any encumbrances, therefore, the plaintiff is not liable to claim any relief against the 3rd defendant. Finally, prayed to dismiss the suit against him.
11. Basing on the above pleadings, the trial Court framed the following seven issues;
1. Whether the delivery of possession of suit land was affected under the document dated 29.04.1986 in favour of the plaintiff?
2. Whether the agreement dated 29.04.1986 is unenforceable under law and it is liable for stamp duty and penalty?
3. Whether the document dated 29.04.1986 was executed by 2nd defendant or forged or materially altered?
4. Whether the plaintiff executed Hami Dasthaveju on 01.01.1987 and binding on plaintiff?
5. Whether the plaintiff is entitled for specific performance of the agreement dated 29.04.1986 with a direction to the defendant to receive balance of sale consideration to register the sale deed in respect of suit property or whether the plaintiff is entitled for refund of Rs.75,035/- with interest as prayed for?
6. Whether the suit is bad for non-joinder of necessary parties?
7. To what relief?
12. During course of trial, on behalf of plaintiff, PWs 1 to 6 were examined and Exs.A1 to A5 were marked. On behalf of defendants, DWs 1 to 6 were examined and Exs.B1 to B7 were marked.
13. Upon hearing argument of both counsel and considering the oral and documentary evidence available on record, the trial Court concluded that the plaintiff did not approach the Court with clean hands and suppressed several facts, denied the primary relief of specific performance of agreement of sale, but by exercising discretion under Section 22 of the Specific Relief Act, granted alternative relief of refund of advance sale consideration with interest against defendants Nos.1 and 2.
14. Aggrieved by the decree and judgment, defendants Nos.1 and 2 preferred the present appeal challenging the decree and judgment on various grounds, mainly contending that the trial Court without understanding the pleadings and issues framed, passed a decree erroneously for alternative relief of refund of advance of sale consideration together with interest and that too Ex.B6 was executed in favour of 3rd defendant by defendants Nos.1 and 2 only at the instance of the plaintiff (PW 1), but the trial Court ignored the specific plea of the defendants Nos.1 and 2.
15. It is further contended that Ex.A1 is not admissible in evidence in view of Article 47-A of the Indian Stamp Act, but the trial Court admitted the document and passed a decree for alternative relief of refund of advance amount. The trial Court also failed to consider Exs.B1 to B3 and B6 in proper perspective with reference to specific plea of defendants Nos.1 and 2 and committed an error in granting a decree for alternative relief of refund of advance sale consideration. Contending as above, the appellants/defendants Nos.1 and 2 prayed to allow the appeal by setting aside the decree and judgment of the trial Court granting alternative relief of refund of advance sale consideration of Rs.75,035/-.
16. Learned counsel for appellants would contend that the trial Court has to take into consideration the total circumstances of the case, but the trial Court having disbelieved the case of the plaintiff while declining to grant primary relief of specific performance, granted alternative relief erroneously. If all the circumstances are taken into consideration with reference to specific plea raised by defendants Nos.1 and 2 in their written statements, the trial Court would not have granted even the alternative relief of refund of advance sale consideration with interest but committed an error in passing decree for alternative relief.
17. Per contra, the learned counsel for the 1st respondent/plaintiff would contend that when primary relief cannot be granted in a suit for specific performance, the Court can grant a decree for alternative relief of refund of advance sale consideration under Section 22 of the Specific Relief Act and the trial Court believed the evidence available on record about the receipt of advance of sale consideration in installments and rightly granted a decree for refund of advance sale consideration, and finally prayed to dismiss the appeal confirming the decree and judgment of the trial Court.
18. Considering the contentions of defendants Nos.1 and 2 and the plaintiff, perusing the oral and documentary evidence available on record including the judgment and decree under challenge, the only point that arises for consideration in this appeal is;
“Whether the 1st respondent/plaintiff is entitled to recover Rs.75,035/- together with interest from defendants Nos.1 and 2 as alternative relief”.
Point:
19. Undisputedly, the plaintiff and defendants Nos.1 and 2 entered into an agreement of sale, marked as Ex.A1, dated 29.04.1986 and receipt of amount under Exs.A2 to A4 dated 27.05.1986, 01.07.1986 and 01.12.1986 endorsed on the reverse of Ex.A1 is not in dispute. Thus, defendants Nos.1 and 2 though initially denied about the execution of Ex.A1, did not dispute receipt of various amounts covered under Exs.A1 to A4. The only contention before this Court in this appeal is that at the instance of the plaintiff, defendants Nos.1 and 2 executed registered sale deed in favour of the 3rd defendant under Ex.B6 without receiving any sale consideration.
20. At this stage, I feel that it is appropriate to advert the specific plea raised by the defendants Nos.1 and 2 in their written statements. In paragraph No.6 of the written statement filed by the 1st defendant, he asserted as follows:
“The plaintiff has not performed his part of the contract at any time. According to the wish of the plaintiff this defendant executed a registered sale deed out of the land agreed to be sold in the name of the 3rd defendant in the performance of the agreement. The 3rd defendant is none other than the son-in-law and close relative of the plaintiff. It is for this reason though 3rd defendant purchased it with the knowledge of the agreement, but he did not pay consideration as the consideration was already received from the plaintiff. Now the plaintiff and the 3rd defendant are colluding to harass this defendant. The 3rd defendant is not a bona fide purchaser and he has not paid any consideration for the sale deed in his name.”
But the 2nd defendant did not disclose about execution of Ex.B6 in favour of the 3rd defendant as per wish of the plaintiff, but totally denied the execution of Ex.A1-agreement of sale. Therefore, a bare reading of paragraph No.6 of the written statement of the 1st defendant, his specific plea is that only as per the wish of the plaintiff, defendants Nos.1 and 2 executed registered sale deed, marked as Ex.B6, in favour of the 3rd defendant who is none other than son-in-law of the plaintiff and no consideration was received under Ex.B6 from 3rd defendant. In view of specific plea, it is necessary to advert to evidence on record.
21. As usual, PW 1, in his examination in chief, reiterated what he pleaded in the plaint, however, in the cross examination dated 04.06.1995 by 1st defendant’s advocate, he made a vain attempt to prove execution of Ex.B6 at the instance of plaintiff in favour of 3rd defendant, but PW 1 denied authorization of 1st defendant to execute registered sale deed in favour of the 3rd defendant specifically. In cross examination by learned counsel for the 2nd defendant, nothing has been elicited except eliciting the relationship between plaintiff and 3rd defendant and even as per the admissions, 3rd defendant is the son-in-law of the plaintiff. In the entire cross examination, no suggestion was put to PW 1 that as per wish of PW 1, defendants Nos.1 and 2 executed Ex.B6 in favour of 3rd defendant. On the other hand, the facts elicited in the cross examination would establish that on the date of execution of Ex.A1, plaintiff paid Rs.500/- and Rs.17,000/- on 27.05.1986 to the 1st defendant and obtained an endorsement on the reverse of Ex.A1 agreement of sale and later on 01.07.1986 the plaintiff paid Rs.23,000/- to the 1st defendant. Therefore, there is nothing to conclude that the amount paid by plaintiff to 1st defendant is appropriated towards sale consideration under Ex.B6. Failure to suggest the witness anything about such appropriation and adjustment of consideration paid by plaintiff under Ex.B3 is fatal to the plaintiff’s case. In this regard, it is appropriate to refer to the principles laid down
[1]
by the Calcutta High Court in A.E.G Carapiet vs. A.Y.Derderian and the Apex Court in M.B.Ramesh and others vs. K.M.Veeraje Urs [2] and others .
The Calcutta High Court in A.E.G Carapiet vs. A.Y.Derderian (1 supra) held as follows:
“Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. This is not merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. This much a counsel is bound to do when cross-examining that he must put to each of his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share.”
The same view was expressed by the Apex Court in M.B.Ramesh and others vs. K.M.Veeraje Urs and others (2 supra), holding that;
“24. In the present case, we may note that in Para 21 of his cross-examination, P. Basavaraje Urs has in terms stated, “Mr. Mallaraje Urs and Smt. Nagammanni, myself and one Sampat Iyanger were present while writing the will.” One Mr. Narayanmurti was also present. In Para 22 he has stated that Narayanmurti had written Ext.3 (will) in his own handwriting continuously. The fact that M. Mallaraje Urs was present at the time of execution of the will is not contested by the defendants by putting it to PW.2 that M. Mallaraje Urs was not present when the will was executed. As held by a Division Bench of the Calcutta High Court in a matter concerning a will, in Para 10 of A.E.G. Carapiet Vs. A.Y. Derderian {IR 1961 Calcutta 359 (V 48 C 74)}.”
In view of the principles laid down by the Calcutta High Court and the Apex Court, referred to above, I am of the view that when no suggestion was put to witness denying specific case of the defendants, it is deemed that they admitted the contentions of the plaintiff.
22. PW 2 is the scribe of Ex.A1 and Ex.B6. As usual, in the examination in chief, he supported the case of the plaintiff about scribing of Ex.A1 and Ex.B6, however, in the second paragraph of cross examination, at page-3, he admitted that at the instance of plaintiff, 1st defendant sold Ac.4.00 of land to 3rd defendant. In the further cross examination, no suggestion was put to PW 2 about appropriation or adjustment of sale consideration paid under Ex.A1 as advance towards the sale consideration under Ex.B6.
23. DW 1 in his examination in chief asserted that at the request of the plaintiff, he executed a sale deed for Ac.4.00 of land out of Ac.6.98 cents in favour of 3rd defendant for Rs.50,000/- and the plaintiff also executed a document in favour of DW 1 authorizing him to execute a registered sale deed in favour of 3rd defendant. In the cross examination, at page-6, in the last three lines of penultimate paragraph, a suggestion was put to DW 1 that he executed the sale deed Ex.B6 in favour of 3rd defendant after receiving full sale consideration before the Sub-Registrar, but DW 1 denied the said suggestion. Thus, the plaintiff denied the specific plea of the defendants Nos.1 and 2 that at the instance of plaintiff, 1st defendant executed a sale deed in favour of 3rd defendant under Ex.B6.
24. When I advert to Ex.B6, it is only a sale deed conveying Ac.4.00 of land out of Ac.6.98 cents agreed to be sold under Ex.A1 for Rs.33,200/-. Execution of Ex.B6 clearly disclosed that the 1st defendant sold the property for discharging his family debts and to meet the family expenses, and received Rs.33,200/- on the date of execution of Ex.B6 itself. The total amount received under Exs.A1 to A4 is Rs.50,500/-, but whereas Ex.B6 was executed only for Rs.33,200/-.
25. The plea of defendants Nos.1 and 2 and evidence adduced by the defendants is totally against the bar of Section 92 of the Indian Evidence Act. Section 92 of the Indian Evidence Act does not permit the parties to adduce any oral agreement or statement contrary to the terms of the document be let in contradicting or varying or addition or subtracting anything to its terms. But the trial Court permitted to adduce evidence contrary to the terms of Ex.B6, hence the evidence whatever adduced by defendants contrary to the terms of Ex.B6, more particularly, regarding passing of sale consideration of Rs.33,200/- on the date of execution itself cannot be looked into for any purpose. Thus, the oral evidence of DW 1 is totally contrary to the terms of Ex.B6, therefore, his evidence is of no avail to prove that Ex.B6 was executed at the instance of plaintiff without receiving any consideration, as the document itself established that the 1st defendant received Rs.33,200/- on the date of execution of Ex.B6 itself. Total amount received under Exs.A1 to A4 is Rs.50,500/- whereas Ex.B6 was for Rs.33,200/-, so, the plea of 1st defendant that he executed Ex.B6 without receiving any amount as sale consideration is believable for the reason, the consideration received under Exs.A1 to A4 and B6 is irreconcilable and no explanation was offered for the balance of advance received under Exs.A1 to A4. Therefore, the plea of defendants Nos.1 and 2 that they executed Ex.B6 adjusting or appropriating the sale consideration paid under Exs.A1 to A4 is not believable, accordingly, the trial Court disbelieved the specific contention as the evidence adduced by 1st defendant is against Section 92 of Evidence Act, it is varying the terms of Ex.B6. Even after perusing the entire material available on record, I have not find any legal infirmity warranting interference with the findings of the trial Court.
26. According to Section 22 of the Specific Relief Act, when the Court finds that the primary relief cannot be granted, the Court may grant alternative relief, if such alternative claim is made in the plaint.
27. In the present case, the plaintiff by claiming primary relief of specific performance, claimed relief of recovery of Rs.50,000/- together with interest as alternative relief. Therefore, the alternative relief claimed by the plaintiff is within ambit of Section 22 of the Specific Relief Act and the trial Court having come to the conclusion that the plaintiff did not approach the Court with clean hands, did not exercise discretion under Section 20 of the Specific Relief Act to grant primary relief of specific performance, but granted alternative relief of refund of advance sale consideration by exercising its power under Section 22 of the Specific Relief Act. The findings of the trial Court does not call for interference by this Court as I find no legal infirmity in it, hence the findings of the trial Court are hereby confirmed, holding this point in favour of the 1st respondent/plaintiff and against defendants Nos.1 and 2.
28. The learned counsel for the appellants/defendants Nos.1 and 2 did not raise any other contention except the contentions referred to above, therefore, I myself refrain to decide the core issue before it.
29. In view of my findings on the above point, I find that the appeal is devoid of merits and deserves to be dismissed.
In the result, the appeal is dismissed confirming the decree and judgment of the trial Court. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
M.SATYANARAYANA MURTHY,J Date: 24.12.2014 Dsr
[1] AIR 1961 Calcutta 359 (V 48 C 74)
[2] (2013) 7 SCC 490