THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
A.S.No.611 of 2013
Between:
Nellore Masthan Babu And Musunnuru Vijaya
Dated 11th July, 2014
…Appellant …Respondent Counsel for the appellant: Sri M.Ravindra for Sri M.Venkata Narayana Counsel for the respondent: Sri T.C.Krishna The Court made the following:
ORDER:
This appeal arises out of judgment and decree, dated 21.03.2013, in O.S.No.449 of 2008, on the file of the learned Principal Senior Civil Judge, Nellore.
The respondent filed the above-mentioned suit for specific performance of agreement of sale, dated 01.08.2008, executed by the appellant. The respondent pleaded that under the above-mentioned agreement of sale, the appellant has agreed to sell 16.37 ankanams or 109.498 sq.mtrs of land in Survey No.636/P of Nellore at Rs.47,500/- per ankanam, that in pursuance of the said agreement of sale, she has paid Rs.50,000/- and that the appellant later agreed to execute a sale deed if she pays balance sale consideration within one month i.e., before 31.08.2008.
The respondent further pleaded that on 11.08.2008 she approached the appellant with a request to execute registered sale deed in her favour on 12.08.2008 after receiving balance sale consideration and that the appellant has informed her that in addition to 16.37 ankanams agreed to be sold under the agreement of sale, another extent of 2½ ankanams of land is in his possession and that he is willing to execute registered sale deed in respect of the sad land also if she pays its value. That as she is unwilling to buy the additional land in respect of which the appellant has no title, she has caused legal notice, dated 15.08.2008, on the appellant to which the appellant has issued reply notice, dated 27.08.2008, wherein he has stated that he is ready and willing to perform his part of agreement if the respondent pays the value for 2½ ankanams of land. That as the said insistence by the appellant was contrary to the agreement of sale, the respondent filed the suit for specific performance of agreement of sale. The appellant has, however, pleaded that apart from the plaint schedule property, he is in possession of 2½ ankanams of land which is agreed to be purchased by the respondent at the same price and that as the respondent refused to purchase the said property, he did not execute the sale deed.
Based on the respective pleadings, the lower Court has framed the following issues:
“1. Whether 2½ ankanams poramboke site referred to in the written statement is part of subject matter of suit agreement of sale as pleaded by defendant?
2. Whether the plaintiff has ever been ready and willing to perform her part of contract?
3. Whether the plaintiff is entitled for a decree of specific performance of suit agreement of sale?
4. To what relief?”
The respondent/plaintiff examined herself as PW.1 and marked Exs.A1 to A6 and the appellant/defendant examined himself as DW.1 and examined DWs.2 and 3. No documents have been marked on his behalf.
On appreciation of oral and documentary evidence, the lower Court held all the issues in favour of the respondent/plaintiff and decreed the suit with costs. Feeling aggrieved by the said judgment and decree, the appellant/defendant has filed the present appeal.
The bone contention in the case between the parties pertains to the additional extent of 2½ ankanams. A perusal of Ex.A1 shows that it is recited therein that the appellant agreed to sell the schedule land which was purchased under registered document No.4848/1996, dated 11.07.1996, from Mannem Amarnath Reddy as per the measurements. In the schedule, the extent of land is mentioned as 16.37 ankanams or 109.498 sq.mtrs with specific boundaries. The appellant all through persisted that the respondent agreed to purchase the additional 2½ ankanams of land which is in his possession. The only basis for this stand of the appellant is the recital in Ex.A1 that the respondent agreed to purchase the property based on measurements. By examining DW.2, one of the attestors, and DW.3, a third party to the transaction, the appellant sought to drive home the said plea. Indeed, in her deposition, the plaintiff as PW.1 has admitted that if the extent is more than 16.37 ankanams, she has to pay the balance value of the land in excess of the said site. However, the lower Court reasoned that as admittedly the appellant purchased only 16.37 ankanams from his vendor and he has no title over 2½ ankanams, he has no legal right to insist that the respondent is liable to pay the value for the said additional extent of land.
While this Court has its own reservations on this reasoning of the lower Court, it is not necessary for this Court to delve into the said aspect. When this case came up at the interlocutory stage, this Court has asked the learned counsel for the respondent whether his client is willing to pay for the additional extent of 2 ½ ankanams at the agreed price. The learned counsel on instructions reported that his client is willing to pay for the additional extent of land. However, the learned counsel for the appellant reported that his client is not willing to receive the said amount at this point of time.
Irrespective of the versions of the parties, if the recitals of Ex.A1- agreement of sale are read and understood properly, it is evident that the respondent has agreed to buy and the appellant agreed to sell the land mentioned in the schedule. The schedule clearly mentioned ‘16.37 ankanams or 109.498 sq.mtrs’. The agreement does not raise any whisper about the additional extent of 2½ ankanams of land. Viewed from this perspective, the appellant cannot justify his act of refusal to execute the registered sale deed on the ground that the respondent has not paid for the balance additional extent of land for which he has no title whatsoever. At any rate, when the respondent has agreed to pay for the said additional extent in this appeal, the appellant has declined to receive the same.
On a careful consideration of the facts and circumstances of the case and the evidence on record, I do not find any reason to interfere with the judgment of the lower Court. The appeal is therefore dismissed.
As a sequel to dismissal of the appeal, interim order, dated 19.09.2013, shall stand vacated and A.S.M.P.Nos.1713/13 & 557/14 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 11th July, 2014
VGB