HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.245 of 1992 And A.S.M.P.No.444 of 2013 29th April, 2014 Between :-
Pattipati Chalamaiah and others .. Appellants And Buddavarapu Satyanarayana Murthy And others .. Respondents HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.245 of 1992 And A.S.M.P.No.444 of 2013 JUDGMENT:-
The first appellant is the plaintiff and respondents No.1 to 3 are defendants No.1 to 3 in O.S.No.140 of 1978 on the file of the Subordinate Judge, Ongole. Respondent No.4/defendant No.4 was impleaded as he is said to be a tenant in the suit schedule property.
2. During the pendency of the appeal, first appellant and respondents No.1 to 3 died. Appellants 2 to 6 are the legal representatives of the first appellant whereas respondents No.5 to 12 are the legal representatives of respondents No.1 and 3. No legal representatives were brought on record for the second respondent.
3. For the sake of convenience, the parties are referred to as arrayed in the suit.
4. In June, 1978, the plaintiff filed the suit for specific performance of an agreement of sale, dated 31-05-1974 by defendants No.1 and 2 in respect of their share. The averments of the plaint, in brief, are as under:-
Defendants No.2 and 3 are the undivided sons of the first defendant and they are members of the joint Hindu Family. Venkata Subba Sastri had two sons viz., Satyanarayana Murthy (D.1) and one Nagabhushanam. After the death of their father, the suit property was divided into two shares and the eastern half of the building fell to the share of the first defendant whereas the western half went to the share of Nagabhushanam. The share of Nagabhushanam, namely the western half of the schedule building was purchased by the plaintiff from Nagabhushanam under registered sale deed, dated 31-05-1974. On the same day, the first defendant, as manager of the Hindu joint family, agreed to sell the eastern half to the plaintiff for a consideration of Rs.20,000/- and the first defendant received Rs.1,000/- as advance and executed an agreement of sale on 31-05-1974. As per the agreement, the defendants shall execute registered sale deed in favour of the plaintiff, who should pay the balance sale consideration by the end of May, 1975.
The plaintiff further averred that he secured the money in May, 1975, and demanded the defendants to execute the sale deed, but they had been postponing the same on some pretext or the other. Thereafter, the plaintiff was arrested under MISA and was detained for 16 months. When he came out on parole, he got issued a registered notice on 22-09-1976 to the first defendant, which was replied by the first defendant with false allegations. The fourth defendant, who is a tenant of the suit schedule property, also bargained for the property. The plaintiff issued notice to fourth defendant, which was refused. The fourth defendant has sub-let ground portion to some others and is liable to be evicted from the suit premises.
It is further contended that for sometime there was compromise talks between the plaintiff and defendants and the matter was prolonged. Suit agreement is binding on D.2 and D.3 also, who are the sons of D.1. D.3, who was in need of money, executed a registered sale deed for his 1/3rd share in the schedule property in favour of the plaintiff on 20-05-1978 and received his share of consideration. The possession of the undivided share of D.3 was delivered to the plaintiff. Therefore, D.3 is only a proforma party.
In spite of demands, D.1 and D.2 failed to execute the sale deed in respect of their share and hence, the suit.
5. The first defendant filed his written statement denying the contention of the plaintiff alleging that the suit agreement, dated 31-05- 1974 is a rank forgery, which was brought into existence with the support of the close associates of the plaintiff. It is the contention of D.1 that in 1974, his father wrote a letter to him informing that his father executed an agreement of sale in respect of the entire house and site in favour of the plaintiff and also one Cherukuri Venkateshwarlu for Rs.60,000/- by taking advance of Rs.25,000/-. His father requested D.1 to go over to Ongole to join in the execution of the sale deed. D.1 replied to his father opposing the transaction in respect of Daba house and stated that the other tiled house and site may be sold. Subsequently, D.1 came to Ongole to attend the marriage of the daughter of his brother on 09-05-1974. At that time, D.1 has seen a diary maintained by his father, which contained an entry that his father has received Rs.25,000/- from the plaintiff and Cherukuri Venkateshwarlu. On 13-05-1974, the father of D.1 died. His father executed registered will deed, dated 09-10-1967, under which, he bequeathed the daba house with some other properties to D.1 and his brother Nagabhushanam in equal moieties. After the death of his father, D.1 became entitled to half of the entire daba house and site. In the partition, between D.1 and his brother Nagabhushanam, the suit schedule property fell to the share of D.1. D.1 refused to sell his share of the daba house and therefore the agreement executed by the father of the D.1 in favour of the plaintiff and Cherukuri Venkateshwarlu was given up. The advance amount was utilized by Nagabhushanam for discharging his personal expenses and for the marriage expenses of his daughter. Nagabhushanam offered to sell his half portion of the daba house and the plaintiff alone agreed to purchase the same for Rs.30,000/-. The share of the amount that was paid by Cherukuri Venkateshwarlu was returned to him and the share of the amount as paid by the plaintiff was adjusted towards the sale consideration of the sale deed executed by Nagabhushanam on 31-05-1974 for the western half. It is further contended that even though the sale consideration was Rs.30,000/-, the plaintiff got it mentioned as Rs.20,000/- only to avoid the stamp duty. D.1 attested the said sale deed as an identifying witness to avoid any future litigation as suggested by well-wishers. The original agreement was destroyed at that time in the presence of the elders. It is alleged by D.1 that one Koti Singh was supporting the plaintiff and the said Koti Singh threatened D.1 to execute the sale deed along with Nagabhushanam, but D.1 refused.
The plaintiff filed R.C.C.No.16 of 1978 against D.1 and others with regard the schedule property, which is being contested. The plaintiff has no capacity to purchase the schedule property and he was never ready with the consideration. There was no compromise and the said ground is invented to explain the delay in filing the suit.
D.1 further contended that his second son, namely the 3rd defendant, is a vagabond and since D.1 refused to give money to D.3, he bore grudge against him and he was won over by the plaintiff. The plaintiff got the sale deed from D.3 in collusive and fraudulent manner, which is not binding on D.1.
It is further contended that the suit schedule property is the self- acquired property of D.1, and D.2 and D.3 had no share therein. The plaintiff, being an Advocate, obtained the sale deed from Nagabhushanam and his son. The plaintiff is not entitled for the relief and the suit is liable to be dismissed.
6. The second defendant filed written statement with identical contentions similar to that of his father D.1.
7. D.3 and D.4 remained ex parte.
8. On the basis above pleadings, the following issues were framed by the trial Court:-
1) Whether the suit agreement is true, valid and binding on the defendants?
2) Whether the plaintiff is entitled to the relief of specific performance of suit agreement?
3) Whether the plaintiff has been ready and willing to perform his part of the contract?
4) Whether the sale deed dated 20-05-1978 is true, valid and binding on defendants 1 and 2?
5) Whether the plaintiff is entitled to possession of the suit properties?
6) To what relief?
9. On behalf of the plaintiffs PWs.1 to 5 were examined and Exs.A.1 to A.13 were marked. On behalf of the defendants, D.Ws.1 to 5 were examined and Exs.B.1 to B.18 were marked. Exs.X.1 to X.3 and Exs.C.1 to C.9 were also marked.
10. Upon consideration of the oral and documentary evidence on record and having heard the submissions of the learned Advocates, through the Judgment and Decree, dated 16-08-1991, the learned Subordinate Judge, Ongole, held that the suit agreement of sale – Ex.A.1 is not true, valid and binding. It is further held that the sale deed executed by D.3 in favour of the plaintiff, dated 20-05-1978 for his alleged 1/3rd share is also not true, valid and binding on D.1 and D.2 and accordingly dismissed the suit.
11. Aggrieved by the said Judgment and Decree, the plaintiff preferred this appeal.
12. Learned Counsel for the appellant submits that the Court below has erred in disbelieving the evidence of PW.1, that the findings insofar as PW.5 is concerned are perverse, that the explanation for filing the suit with a deficit Court-fee which was offered by the plaintiff was erroneously disbelieved, that the legal aspects are not properly appreciated, that the Court below erred in admitting Exs.X.1, X.4 and C.2 to C.9, which is the opinion of an handwriting expert without examining the expert, that with regard to the sale deed Ex.A.4 executed by D.3 in favour of the plaintiff, the learned trial Judge has erred in holding it to be collusive, that such a finding is contrary to the evidence given by the defendant himself, that Ex.A.4 ought to have been held to be a valid document, and that a finding on issue No.4 is beyond the scope of the suit. It is further contended that the lower Court did not consider the documents showing the nature of the property, that the contention of the defendants with regard to the transaction in respect of the suit schedule property was incorrectly considered. It is also contended that even though there is evidence about the detention of the plaintiff under MISA and his coming out on parole, the learned Judge has erred in dismissing the suit, and hence the appeal.
13. The points that arise for consideration are:-
1) Whether the suit agreement Ex.A.1, dated 31-05-1974, is true, valid, and binding on the defendants so as to direct the defendants to execute the sale deed?
2) Whether the plaintiff is entitled to recover the possession of the schedule property?
3) Whether the Judgment under appeal is liable to be set aside, modified, or, varied?
14. During the pendency of the appeal, the original parties died and the matter is pursued by their legal representatives. During the course of arguments, learned Counsel for the appellants as well as the respondents have taken me through the voluminous oral and documentary evidence on record. Having perused the same, what is noticed is that the point in controversy between the parties boils down to the effect as to whether the agreement of sale – Ex.A.1, dated 31-05- 1974, is true, valid, and genuine, or whether it is a rank forgery, as contended by the defendants. Even though, several aspects have been highlighted about the title over the property and incidental aspects, but in view of the specific contention and counter contention, those aspects are not having a direct bearing on the point in controversy. Even according to the plaintiff, the suit schedule house comprised of two portions and was originally owned by one Venkata Subba Sastri. The said Venkata Subba Sastri died on 13-05-1974. In pursuance of the will executed by the said Venkata Subba Sastri, the suit house devolved on his two sons viz., Satyanarayana Murthy (D.1) and Nagabhushanam. The western part of the building fell to the share of Nagabhushanam whereas the eastern half fell to the share of D.1. It is also borne out from the record that Venkata Subba Sastri, during his life time, has entered into an agreement of sale for sale of the entire schedule building in favour of the plaintiff and one Cherukuri Venkateshwarlu. Both of them were the legal practitioners in the town. The suit house was agreed to be sold to both the plaintiff as well as Cherukuri Venkateshwarlu for a consideration of Rs.60,000/-, and advance of Rs.25,000/- was received by Venkata Subba Sastri. This agreement of sale by Venkata Subba Sastri in favour of the plaintiff and Cherukuri Venkateshwarlu was opposed by D.1. It is also not denied that D.1, who was working in West Godavari District, visited Ongole, where the suit property is situated, in the month of May, 1974 in connection with the marriage of the daughter of Nagabhushanam. The marriage was performed on 09-05-1974, and unfortunately, within four days thereafter, i.e., on 13-05-1974, Venkata Subba Sastri died. By that time, an agreement of sale in favour of both the plaintiff and Cherukuri Venkateshwarlu in respect of the suit house was subsisting. Since the transaction was being resisted, it appears that the parties agreed to get the sale deed in respect of the western portion that fell to the share of Nagabhushanam to be sold in favour of the plaintiff and adjust the earnest money of Rs.25,000/- paid by the plaintiff and Cherukuri Venkateshwarlu, from out of the sale consideration payable to Nagabhushanam. Insofar as the contribution of Cherukuri Venkateshwarlu in the transaction is concerned, it appears that the matter was settled in between the plaintiff and Cherukuri Venkateshwarlu. It is also borne out from the record that in pursuance to the understanding between the parties, Nagabhushanam executed a registered sale deed, the certified copy of which is Ex.B.2, on 31-05- 1974, selling his portion of the suit schedule house in favour of the plaintiff. To the said registered instrument, D.1 being the brother of the executant Nagabhushanam also signed as an identifying witness. It is also on record that after the sale deed was executed and registered, the agreement of sale said to have been executed by Venkata Subba Sastri in favour of the plaintiff as well as Cherukuri Venkateshwarlu was destroyed. The above aspects are either proved or are not serious contested. The controversy started thereafter.
15. According to the plaintiff, on the date of Ex.B.2 namely 31-05- 1974, D.1 in his capacity of the manager of the joint family which comprises of his two sons i.e., D.2 and D.3, has entered into an agreement of sale to sell his eastern portion of the schedule house as well to the plaintiff for a consideration of Rs.20,000/-, and accordingly, an advance of Rs.1,000/- was paid by the plaintiff to D.1. According to the plaintiff, it was agreed between the parties that by May, 1975 i.e., after one year, the plaintiff will pay the balance consideration of Rs.19,000/- and the defendants shall execute the registered sale deed. According to the plaintiff, after the period expired i.e., in May, 1975, the plaintiff informed D.1 that he is ready with the balance consideration and called upon the defendants to fulfil their part of the contract. They have postponed the matter and in September, 1975, the plaintiff was detained under the Maintenance of Internal Security Act (MISA) and the matter remained as it is till June, 1976, when the plaintiff was released. Thereafter, the plaintiff got issued legal notice on 22-09-1976, the office copy of which is Ex.A.2, calling upon the defendants to accept the balance consideration and execute the sale deed. It is contended by the plaintiff that the defendants have postponed the matter on some pretext or the other, which ultimately led the plaintiff filing the suit in June, 1978.
16. The defendants on their part have denied each and every aspect. It is the specific case of the defendants that there was never any agreement either written or oral in between D.1 and the plaintiff for sale of the eastern portion of the schedule house for a consideration of Rs.20,000/-. The specific defence of the defendants is that if there is any such written agreement of sale, it is nothing but a rank forgery. The defendants further contended that they are not liable to execute the sale deed as claimed by the plaintiff.
17. The relief of specific performance is a discretionary relief and the discretion has to be exercise judiciously taking into consideration all the surrounding facts and circumstances. Depending upon the resistance offered by the opposite party, the plaintiff has to prove his case so as to be entitled to the equitable relief. In a case where the defendants from the day one denies the entire transaction and allege that the agreement of sale, if any, written, is a forged document, the duty is cast upon the plaintiff to firstly prove the agreement of sale itself and thereafter he must show that he was ready and prepared to fulfil his part of the contract and the defendant had been guilty of breach of the terms of the contract.
18. The case in hand has peculiar characteristics. The title of the property nor the competence to enter into contract inter vivos is in question. The plaintiff is a leading legal practitioner of the town with more than ten years standing at the time when the agreement of sale is said to have been executed. Therefore, the overall conduct of the plaintiff has to be carefully scrutinized.
19. The schedule house comprises of two portions. Nagabhushanam and D.1 are the respective owners of the portions. On 31-05-1974, the plaintiff obtained a registered sale deed from Nagabhushanam in respect of the western portion and to the sale deed, D.1 being the brother of Nagabhushanam has signed the registered instrument as an identifying witness. According to the plaintiff, on the same day, the agreement in dispute was entered into in between him and D.1. According to the plaintiff, it was an unregistered instrument and was obtained on a white paper. When all the parties were present in the Registration Office, though not necessary, still the plaintiff being a leading legal practitioner, should have taken adequate precautions while entering into the agreement of sale, or parting with the earnest money. The plaintiff would not have obtained the agreement of sale on a white paper, even though he is presumed to know the requirement of obtaining an agreement of sale on a non- judicial stamp paper. Advocates with their legal expertise are supposed to protect and safeguard their rights more diligently than a layman. The explanation offered by PW.1/plaintiff that he could not obtain a stamp paper since the office time was over cannot be believed.
20. Be that as it may, even according to the plaintiff, D.1 had to enter into an agreement of sale with him in view of his pressing need of money, inasmuch as, D.1 was required to meet the educational expenses of his children and also to clear off the debts. When that is the case, it is difficult to believe that D.1 would have agreed to sell the schedule house to the plaintiff for a total consideration of Rs.20,000/-, only by receiving Rs.1,000/- as earnest money and agreeing to receive the balance sale consideration of Rs.19,000/- one year thereafter. It is not as though that the plaintiff was having means on that day or that it is he who sought for a long period of one year for completing the transaction. The transaction is in respect of a residential building situated in an urban area. Considering the fact that D.1 was a worldly wise and educated person and if really, he was in dire need of money, he would not have agreed to sell the suit house to the plaintiff and accept to receive almost the entire sale consideration one year thereafter. This circumstance by itself raises a doubt about the claim of the plaintiff.
21. The other aspect of the matter is as to what happened after the agreement of sale. According to the plaintiff, he was having time till May, 1975, to fulfil his part of the contract. Nothing is pleaded to the effect that during this period of one year, at any point of time, the plaintiff offered the balance consideration to the first defendant and called upon him to execute the sale deed. The agreement, according to the plaintiff, was specific that the transaction will be completed in May, 1975. He being an Advocate, who can be attributed with the knowledge of consequences, would have been cautious at least in May, 1975. However, only in September, 1976, i.e., one year four months after the time stipulated expired, the plaintiff got issued a legal notice – Ex.A.2 on 22-09-1976. This was promptly replied by D.1 on 20-10-1976 under Ex.A.3 denying the entire case of the plaintiff. The inaction of the plaintiff for this long period cannot be countenanced. It is no doubt true that the plaintiff was detained from September, 1975 to June, 1976 under MISA. That, however, do not mean that the plaintiff was not in a position to assert his right either during the period of his incarceration or immediately preceding the detention or subsequent to release. Once the agreed period of May, 1975, expired, the plaintiff should have known that each day matters and he could not have allowed the matter to lie over. His contention that oral negotiations, talks, settlements etc., were going on cannot be accepted for the reason that the plaintiff should have been aware that once the period stipulated under Ex.A.1 expired, any amount of talks or settlements are likely to adversely affect his rights of seeking the enforcement of the contract.
22. It is the case of the plaintiff that all along he had been ready to perform his part of the contract and was ready with the balance consideration. However, from a perusal of Ex.A.2, which is the legal notice issued by the plaintiff, it is noticed that he made the arrangement of the consideration by borrowing from his brother-in-law. Another aspect, which is evident from Ex.A.2, is that when the legal notice is purported to have been issued from the Office of Sri K.V.Subrahmanyam, an Advocate of Ongole, but curiously the said notice is not signed by the said Advocate but appears to have been signed by the plaintiff himself. Nothing prevented the plaintiff, he being Advocate to issue notice on his own behalf from his Office without utilizing the name of another Advocate Sri K.V.Subrahmanyam.
23. The other aspect of the matter is about the contention of the defendant that Ex.A.1 is a forged document brought into existence with the help of yesmen of the plaintiff. Before proceeding to discuss further on this aspect, it may be trite to place on record that at the instance of the plaintiff himself, the disputed agreement of sale was sent to an handwriting expert Mr.C.M.Rehelini, not once but twice and the expert has opined that the signature purported to be that of D.1 on Ex.A.1 – agreement of sale is not the signature of D.1 and that it is a forged signature. Various reasons are assigned by the said expert. The trial Court has minutely compared the signature of D.1 on Ex.A.1 with the admitted signatures and for valid and cogent reasons held that Ex.A.1 is a forged document. In addition to the exercise by the trial Court, I have also carefully perused the admitted and disputed signature of D.1. While concurring with the observations of the Court below, one additional factor noticed is that in all the admitted and contemporary signatures of D.1, he has put two dots underneath the last syllable consistently. That is not found at the disputed signature on Ex.A.1. It may also be stated here that admittedly the original of Ex.B.2 contains the signature of D.1 as an attesting witness. Under the original of Ex.B.2, the plaintiff purchased western part of the schedule house from Nagabhushanam. The original document has not been filed so as to facilitate the comparing of the signature of D.1 with that on Ex.A.1, since both were signed on one and the same day, as per the version of the plaintiff. The learned Counsel appearing for the parties have referred to several authorities which lay down the law on the matter of comparing the signatures when disputed and the weight that is to be given to the opinion of a handwriting expert.
24. The plaintiff is conspicuously silent in his plaint as to whether the agreement of sale is written or oral, nor did he furnish the names of the attestors, scribe etc. However, during the course of trial, he has examined PWs.2, 3 and 4. PW.2 is the attestor of Ex.A.1 and PW.3 is the scribe. PW.4 is one of the sons of another attestor, who died. I have perused the evidence of the supporting witnesses. PW.2 do not appear to be a truthful witness. A feeble attempt was made by PW.2 to show that he do not have much acquaintance with PW.1, an Advocate of the town. However, when confronted with documents, he admitted that PW.1 appeared on his behalf in Court in certain matters. Therefore, PW.2 is the client of PW.1. Similarly, PW.3 is not a professional scribe. He admits that he has not scribed any other agreements of sale. Agreement of sale –Ex.A.1 is executed on 31-05- 1974 and at that time all the parties were before the Sub-Registrar till about 05.00 p.m. If really the agreement of sale Ex.A.1 was entered into and executed on the same day, and if there was any need, PW.1 would have utilised the services of a professional document writer, one of whom has already scribed the original of Ex.B.2, which the plaintiff obtained from Nagabhushanam. PW.3 also expressed his inability to speak about the payment of the advance amount said to have been made by the plaintiff. PW.3 was working as a Clerk in Panchayat Office. PW.3 also could not say as to whether the document, which is scribed, was on a stamp paper or a white paper. Not only PW.3 was not a document writer, there also appears to be acquaintance with the plaintiff and PW.3, inasmuch as, a relation of PW.3, is having business premises in front of the Office of plaintiff.
25. PW.4 is the son of one Koti Singh, who is another attestor. He has been examined only for the purpose of identifying the signature of Koti Singh on Ex.A.1. It is admitted fact that Koti Singh had other sons, who were educated and employed. PW.4 was admittedly an illiterate son. If really, the plaintiff wanted to prove the signature of Koti Singh on Ex.A.1, he ought to have examined the other sons of Koti Singh, who are educated, but not choose an illiterate person to identify the signature of Koti Singh on Ex.A.1. It is also noticed from the evidence of PW.4 that his father Koti Singh signed on Ex.A.1 in their house, but not at the Registration Office.
26. The plaintiff has examined PW.5 to show that the suit could not be filed earlier since there was compromise talks. This aspect is not pleaded in the plaint. However, PW.5 claims that when he spoke to D.1 about the transaction, D.1 demanded additional amount of Rs.4,000/- or Rs.5,000/-. That claim made by PW.5 is neither pleaded by the plaintiff nor is spoken to by him as PW.1.
27. The other aspect of the matter is about the delay. It is not in dispute that the suit property is situated in an urban area, where there will be fast escalation in the prices. As already stated, D.1 agreed to sell the suit house in favour of the plaintiff for a consideration of Rs.20,000/- and he is said to have agreed to receive Rs.19,000/- one year after the agreement of sale. One can take note of the fact that the defendant would not have agreed to sell his part of the schedule house to the plaintiff at the same price one year after his brother Nagabhushanam sold similar part to the plaintiff for the same consideration. It may be recalled that, according to the plaintiff, he purchased the western portion of the said house from Nagabhushanam for a consideration of Rs.30,000/- and obtained the registered sale deed on 31-05-1974, no prudent person will agree to sell identical property for consideration of Rs.20,000/-, that too agreeing to receive Rs.19,000/- one year thereafter i.e., in May, 1975.
28. The period stipulated under Ex.A.1 expired by May, 1975. Till September, 1975, the plaintiff was very much in the town practising as an Advocate. No notice is issued by the plaintiff calling upon the defendant to fulfil his part of the contract. Thereafter, in September, 1975, the plaintiff was detained under MISA. He was detained for about a year. During this period also, if the plaintiff intended, he could have got legal steps taken on his behalf. Nothing of that sort was done. He was released on 01-07-1976. Even thereafter, for about two months, no steps were taken by the plaintiff. Only on 22-09-1976, legal notice was issued under the original of Ex.A.2, which was promptly replied by D.1 under Ex.A.3 on 20-10-1976. Till 05-06-1978 i.e., for nearly two years, the plaintiff has not proceeded further in the matter. Only 05-06-1978 the plaintiff presented the plaint and thereafter, on 15-06-1978, the plaintiff got issued another notice, the original of which is Ex.A.6, and this was also promptly replied by the defendant in July, 1978 itself. Curiously, this exchange of notices were after the plaintiff filed the suit. Surprisingly, the plaintiff who was himself a senior Advocate, has presented the plaint by paying a notional Court-fee of Re.1/- and deliberately has not paid the requisite Court-fees for the plaint being registered. The condition of payment of proper Court-fees was complied with long thereafter. One inference that can be drawn from this aspect is that the plaintiff wanted to indulge in speculative litigation without spending any amount towards Court- fees. Only when the defendant gave reply to his notice, the plaintiff paid the requisite Court-fees and re-submitted the plaint. Another inference that can be drawn from this conduct of the plaintiff is that even by June, 1978, the plaintiff was not having sufficient funds and was not in a position to pay the balance consideration of Rs.19,000/- to D.1 since he was not even having a sum of Rs.1,500/- to pay the Court-fees.
29. A.S.M.P.No.444 of 2013:-
The appellants filed this petition to receive the following documents by way of additional evidence in the appeal:-
1) Four sale deeds, dated 27-10-1973, showing purchase of lands to an extent of Ac.14.10 cents in Alluru village, Kothapatnam Mandal, Prakasam District, by the deceased plaintiff for Rs.16,000/-.
2) Notices, dated 29-07-1974, 06-11-1974 and 23-11-1974 issued by the Income Tax Department on purchase of the property by the deceased plaintiff vide Ex.B.2, on 31-05-1974.
3) Affidavit dated 12-10-2012, along with S.B.A/c.1212 Pass Book with the Ongole Cooperative Bank Ltd., Ongole of one Mr.Patibandla Rama Chandra Rao, S/o.Subbaiah, Chavatapalam village, Nagaluppalapadu Mandal, Prakasam District, who is the brother-in-law of the deceased plaintiff.
4) The order dated 4-9-1975 of the Collector and District Magistrate, Prakasam District, Ongole, the G.O.Rt.No.3635, dated 17-09-1975, of the General Administration (General-A) of the Government of Andhra Pradesh, and the G.O.Rt.No.5033, dated 17-12-1975 of the General Administration (General-D) of the Government of Andhra Pradesh.
5) The agreement dated 20-05-1978 between the deceased plaintiff and the 3rd defendant 9t deceased 3rd respondent herein) on date of execution of sale deed (Ex.A.4).
DOCUMENTS WHICH COME INTO EXISTENCE AFTER THE DEATH OF THE FIRST RESPONDENT/DEFENDANT:-
6) Dated 06-02-2010 – Death certificate of the 1st defendant/respondent.
7) Dated 06-02-2010 – Death certificate of 3rd defendant/respondent.
8) Dated 15-09-2010 – Office copy of the legal notice issued on beha of us to the tenant of the suit schedule property.
9) dated 2809-2010 – reply notice issued on behalf of the tenant of the suit schedule property to us.
10) Dated 26-10-2010 – Copy of a clipping of the General Public Notice, got published in Eenadu Daily newspaper on behalf of us.
11) Dated 29-12-2010 – Copy of clipping of the Public Notice, got published in Eenadu Daily newspaper, on behalf of the some of L.Rs., of the deceased 2nd defendant/-respondent.
12) Dated 10-01-2011 – Office copy of the legal notice issued on behalf of us to the Counsel who got published the above (11) Public Notice.
13) Dated 10-02-2011 – Office copy of the petition filed in O.S.No.12/2011 on the file of the Family Court, Ongole on behalf of us.
14) Certified copy of the plaint, dated 24-01-2011, in O.S.No.12/2011 on the file of the family Court, Ongole, onbehalf of some of the L.Rs., of the 2nd respondent herein against some of the L.Rs., of the 3rd respondent herein and others.
15) Dated 18-02-2011 – Certified copy of the mortgage deed, dated 06-03-1999 executed by first respondent herein in favour of the Ongole Cooperative Bank Ltd., Ongole.
16) Dated 13-03-2011 – office copy of the petition filed in O.S.No.12/2011 on the file of the Family Court, Ongole, on behalf of us.
17) Dated 19-05-2011 – office copy to memo filed in I.A.No.315/2011 in O.S.No.12/2011 on the file of the Family Court, Ongole, on behalf of us.
18) dated 22-12-2011 – Certified copy of the written statement of the defendant No.1 and Adopting Memo. Of the defendant No.2 filed in O.S.No.12/2011 on the file of the V-Additional District Judge, Ongole.
19) Dated 07-02-2012 – Encumbrance certificate issued by the Sub-Registrar Office, Ongole, with regard to the suit schedule property.
20) dated 08-02-2012 – Certified copy of the sale deed, dated 02-11-2010 executed by a son of the 3rd respondent herein – Buddavarapu Niranjan Hari Kishore in favour of Devarapalli Dasaradha Rami Reddy and Tummala Lakshmi Prasuna for sale of the suit schedule property issued by the Sub-Registrar Office, Ongole.
21) dated 10-02-2012 – Certified copy of the sale deed, dated 08-06-2011 executed by the wife and sons of the 2nd respondent herein – Buddavarau Kusuma Kumari, Venkata Subrahmanya Vijaya Ravi Kumar, Srinivasa Rajanikanth and Veerendra Madhav for sale of the half of the suit schedule property issued by the Sub-registrar Office, Ongole.
22) Dated 12-10-2012 – certified copy of the Joint Memo, dated 08-09-2012 filed on behalf of the plaintiffs and defendants No.1, 2 and 3 (signed by the first plaintiff and the first defendant only) in O.S.No.12/2011 on the file of the V- Additional District Judge, Ongole.
23) Dated 12-10-2012- Certified copy of the memo., dated 08-09-2012 filed on behalf of the first plaintiff signed by the first plaintiff only) in O.S.No.12/2011 on the file of the V-Additional District Judge, Ongole.
24) dated 24-10-2012 – Copy of the paper clipping of the notice published in Prajasakthi Daily Newspaper as per orders of the I- Additional Junior Civil Judge, Ongole, in I.A.No.56/2011 in O.S.No.396/1991.
Having gone through the rival contentions and having heard the submissions of both sides, I feel that the documents have no direct bearing to the point in controversy. The suit was filed in the year 1978 and was disposed of by the trial Court on 26-08-1991. This appeal is filed in the year 1992. The additional documents are filed in June, 2013. Except for the two set of documents, all the documents sought to be produced are long after the suit was disposed of. Therefore, I see no reason to receive the said documents by way of additional evidence. The petition is therefore dismissed.
30. Taking into consideration the facts and circumstances of the case in hand, and the material on record, the trial Court held that the suit agreement Ex.A.1 is neither true, valid nor binding. Upon re- appraisal of the entire evidence on record, I have no hesitation in concluding that the plaintiff miserably failed to prove that Ex.A.1 is a genuine and truthful document and that it was executed by D.1. By conduct, the plaintiff disentitled himself from claiming the relief of specific performance of contract.
31. Since the plaintiff is not entitled to the decree of specific performance, he is also not entitled to recover the possession of the suit schedule property. The Judgment of the Subordinate Judge, Ongole, is based on proper appreciation of the oral and documentary evidence on record. The learned Judge has discussed all the aspects minutely and dismissed the suit. There are no grounds to interfere with the said Judgment and Decree. There are no merits in the appeal and the same is liable to be dismissed.
32. In the result, the appeal is dismissed. As sequel to it, miscellaneous petitions, if any, pending in this appeal shall stand disposed of. But, in the circumstances of the case, there shall be no order as to costs.
M.S.K.Jaiswal, J Date: 29-04-2014.
smr HON’BLE SRI JUSTICE M.S.K.JAISWAL A.S.No.245 of 1992 And A.S.M.P.No.444 of 2013 Date 29th April, 2014 smr