THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.NO. 522 OF 2008 Date of Judgment: 22.1.2014 Between:
Pothula Seethamma and another …Appellants And Podila Subhadra and others ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S.No. 522 of 2008 JUDGMENT:
This appeal is preferred by the defendants 1 and 2 in O.S.No. 180 of 2004 on the file of the Senior Civil Judge, Khammam. The said suit was instituted by the first respondent/plaintiff for specific performance of an oral agreement of sale and it was decreed by the trial Court under the impugned judgment and decree dated 28.3.2008. The subject matter of the said suit was the land to an extent of 0-28 guntas in Sy.No. 161/A and Ac.2-35 guntas in Sy.No. 86/E, total admeasuring Ac.3-23 guntas situated at Velugumatla village, Khammam Urban Mandal, Khammam district. For the sake of convenience, the parties are referred to as they are arrayed in the plaint.
Brief plaint averments which are necessary to be noticed to appreciate the various subsequent events are as follows, The plaintiff alleges that the defendant No.2 agreed to sell Ac.3-02 guntas of land in Sy.No. 153 in Velugumatla village, Khammam Urban Mandal, Khammam district and executed a registered sale deed dated 20.6.2001 for a consideration of Rs.3,00,000/-. The plaintiff, however, claims that later she came to know that the boundaries of the land mentioned in the said sale deed do not tally with the land on ground and the defendant No.2 ought to have mentioned Sy.No. 154 instead of Sy.No. 153 and therefore, she requested the defendant No. 2 to rectify the sale deed. However, since the defendant No.2 did not come forward to rectify the sale deed, the plaintiff filed O.S.No. 231 of 2002 before the Senior Civil Judge, Khammam for recovery of sale consideration paid by her. The said suit was filed against the defendants 1 and 2 and other defendants and it was decreed on 7.8.2003 directing the defendants 1 and 2 to pay to the plaintiff a sum of Rs.4,37,000/- with future interest @ 24% P.A. from the date of suit i.e., 19.12.2002 till realization together with costs. The said decree was put in execution by the plaintiff in E.P.No. 4 of 2004. The plaintiff claims that the defendants 1 and 2 then came to her requesting her to purchase the present suit schedule property in lieu of the decretal amount and it is alleged that the said proposal was negotiated between the plaintiff and the defendants 1 and 2 in presence of persons as mentioned in paragraph-5 of the plaint and consideration was settled at Rs.9,85,000/-. The present suit, however, came to be filed seeking specific performance of the said oral agreement of sale as the plaintiff alleges to have come to know that the defendants 1 and 2 have subsequently sold the same suit schedule property to defendants 3 and 4 for Rs.9,83,200/- by way of an agreement of sale-cum-general power of attorney dated 5.7.2004. The plaintiff, therefore, alleges that having agreed to sell the suit schedule property to her in lieu of the execution of the decree in O.S.No. 231 of 2002, the defendants 1 and 2 could not have sold the property to defendants 3 and 4 and therefore, claim for specific performance was laid by the plaintiff by offering to pay the balance consideration after adjusting the decretal amount in O.S.No. 231 of 2002. The said suit was resisted by the defendants and after trial, under the impugned judgment and decree dated 28.3.2008, the said suit was decreed. As against the same, the present appeal is preferred by the defendants 1 and 2.
In the interregnum, the defendants 3 and 4 who were holding an agreement of sale-cum-general power of attorney from defendants 1 and 2 sold the suit schedule property to defendants 5 to 8 under a registered sale deed dated 7.12.2005 and the said defendants 5 to 8 who are subsequent purchasers have preferred AS No. 464 of 2008 against the decree in the present suit. AS No. 464 of 2008 was heard by this Court on 18.9.2008 and in view of the settlement and compromise between the plaintiff and the appellants therein, (defendants 5 to 8 herein), they did not press the said appeal against the appellants herein (defendants 1 and 2 herein) and accepted the title of the plaintiff as per the decree of the trial Court. Accordingly A.S.No. 464 of 2008 was disposed of in terms of the compromise.
When the present appeal came up for hearing, Mr. Vinay Kumar, learned counsel for the appellants has traced the facts narrated above and has made submissions with regard to the validity of the decree.
Mr. M.V.S. Suresh Kumar, learned counsel for the first respondent/plaintiff submits that the appellants/defendants 1 and 2 have no more interest subsisting in the suit schedule property in view of the alienation made by them firstly in favour of the defendants 3 and 4 and later in favour of defendants 5 to 8 and according to the learned counsel, all the rights, title, and interest of the defendants 1 and 2 got transferred and vested in defendants 5 to 8 and the appeal of defendants 5 to 8 viz., AS No. 464 of 2008 preferred against the same impugned judgment and decree having been disposed of in terms of the compromise, nothing further remains for consideration in the present appeal. The learned counsel for the respondent/plaintiff has also filed ASMP No. 2887 of 2003 under Order 41, Rule 27 C.P.C requesting the Court to receive certified copies of two registered sale deeds executed in pursuance of the decree in A.S.No. 464 of 2008. Since this application is not opposed, it is ordered and the said registered sale deeds bearing document Nos. 12405/2012 and 12404/2012, both dated 19.11.2012 are received and marked as Exs.A9 and A10 respectively.
The learned counsel further submits that in view of the registered sale deeds executed by the defendants 5 to 8 in favour of the plaintiff in terms of the compromise decree, all the rights, title and interest of defendants 5 to 8 also vests in the plaintiff and in view of the acquisition of the said title by the plaintiff, the learned counsel for the respondent/plaintiff submits that it is not necessary for the plaintiff to press for execution of the decree in O.S.No. 180 of 2004 which is impugned in this appeal.
In view of that, Mr. K. Vinaya Kumar, learned counsel for the appellants/defendants 1 and 2 submits that he would have no further grievance if the decree is not executed against the appellants/defendants 1 and 2.
The learned counsel for the appellants/defendants 1 and 2, has, however, brought to the notice of this Court the subsequent circumstance that the defendants 1 and 2 have filed O.S.No. 171 of 2013 before the District Judge, Khammam against 12 defendants which includes the parties herein and the relief sought for in the said suit is for declaration that the plaintiffs are absolute owners of the suit schedule property and also for cancellation of agreement of sale-cum-general power of attorney dated 5.7.2004 in favour of the defendants 3 and 4 and also subsequent documents executed by them and the said suit is pending before the said civil Court. Both the learned counsel submit that the said suit can be heard and disposed of on its own merits in accordance with law and it is not necessary to make any observations with regard to the rival claims of the parties therein.
Recording the above submissions of learned counsel for the parties, this appeal is accordingly disposed of. Miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J APPENDIX OF EVIDENCE WITNESSES EXAMINED FOR THE APPELLANTS FOR THE RESPONDENTS -None- -None-
EXHIBITS MARKED FOR THE APPELLANTS -Nil-
FOR THE RESPONDENT:
Ex.A9, Certified copy of registered sale deed bearing document No. 12405/12, dated 19.11.2012 Ex.A10, Certified copy of registered sale deed bearing document No. 12404/12, dated 19.11.2012 VILAS V. AFZULPURKAR, J Dt. 22.1.2014 KR