IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH
WEDNESDAY, THE NINTH OF JULY TWO THOUSAND AND FOURTEEN PRESENT THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AS.No.925 of 1996 Between :
T. Thulasiramaiah, S/o.T. Balaiah, Hindu, Aged about : 37 years, Occ : Cultivation, R/o.Gubalavaripalle, Vedagirivaripalle (PO), Irala Mandalam.
…Appellant/(2nd plaintiff) Vs.
G. Krishnaiah, S/o.Thimmaiah, Hindu, Aged : 41 years, Occ : Cultivation, R/o.Polichettipalle, Damalacheruvu (Post), Pakala Mandal and others.
…Respondents/Defendants Counsel for Appellant/ (2nd plaintiff) : Sri B. Rajendra Counsel for respondents/ Defendants : --
The Court made the following : [order follows] THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO AS.No.925 of 1996 JUDGMENT :
This appeal is filed challenging the judgment and decree dt.30.12.1995 in OS.No.200 of 1985 on the file of the Additional Sub-Ordinate Judge, Tirupati.
2. The appellant herein is the 2nd plaintiff in the above suit.
3. The 1st plaintiff and 2nd plaintiff filed the above suit for specific performance of Ex.A.1 agreement of sale dt.29.10.1982 executed in favour of 1st plaintiff and 3rd defendant by defendant nos.1 and 2. The plaintiffs alleged that defendant nos.1 and 2 had agreed to sell the plaint schedule property which originally comprised of one acre of land for a sum of Rs.90,000/- and executed Ex.A.1 agreement of sale dt.29.10.1982 in favour of 1st plaintiff and 3rd defendant by receiving an advance of Rs.10,000/-
on the date of the said agreement from the plaintiffs and 3rd defendant; that under the said agreement, the balance amount was to be paid within three months; that they had paid certain amounts to defendant nos.1 and 2, totalling in all Rs.83,500/-, including the advance of Rs.10,000/-, leaving a balance of Rs.6,500/-; they have been ready and willing to pay the balance Rs.6,500/- in favour of defendant nos.1 and 2, but the latter have been evading to perform their part of their obligation. They contended that they issued a legal notice under Ex.A.2 on 14.10.1985 and then filed the present suit.
4. Pending suit, some alienations took place at instance of the 1st plaintiff.
5. The plaintiffs filed I.A.No.656 of 1994 in the suit to amend the plaint claiming that 3rd defendant had sold away his 1/3rd share to 4th defendant; that defendant nos.4 and 5, in turn, sold it to defendant no.16; that plaintiffs along with defendant nos.7, 13 and 15 sold Ac.0.50 cents to defendant nos.15 to 17 under various registered deeds; and that only for an extent of Acs.0.16 2/3 cents shown in the plaint ‘B’ schedule, relief of specific performance be granted. The said application for amendment was allowed on 07.10.1994.
6. The main defence of defendant nos.1 and 2 was that 2nd plaintiff is not a party to Ex.A.1 agreement of sale dt.29.10.1982; that there was no privity of contract between defendant nos.1 and 2 and plaintiffs; that 3rd defendant subsequently expressed his desire to take back the money paid by him on the ground that he was not willing to purchase the land; the agreement Ex.A.1 between 1st plaintiff, 3rd defendant and defendant nos.1 and 2 was duly cancelled and the amounts paid by 3rd defendant were looked into and returned to him after selling major portion of the plaint schedule property to several parties; that plaintiffs were aware of these sales and have acquiesced in them, and therefore, cannot question the same.
7. The 2nd defendant filed a memo adopting the written statement of 1st defendant. The 16th defendant also filed a written statement stating that the plaintiffs along with defendant nos.6, 7 and 13 sold ‘A’ schedule property of extent Ac.0.18 cents and 1/40th share in the well to the 16th defendant under a sale deed dt.16.09.1991 for a valid consideration of Rs.18,250/-; they also sold Ac.0.12 cents along with 1/40th share in the well in the suit survey number under a registered sale deed dt.17.09.1991 for a sum of Rs.12,250/- to 17th defendant; that on 17.09.1991, they sold a further extent of Ac.0.20 cents along with 1/40th share in the well in favour of 15th defendant for a sum of Rs.20,250/-; on 21.09.1991, the 5th defendant sold Ac.0.31 cents and 1/40th share in the well to defendant nos.15 and 16 which was later rectified under rectification Deed dt.25.08.1992; and these defendant nos.15 to 17 purchased Ac.0.81 cents of land in the suit survey along with respective shares in the well situated in the suit survey.
8. The trial court framed the following issues :
“1. Whether there is any privity of contract between the plaintiffs and the defendants 1 and 2 ?
2. Whether the plaintiffs are entitled for specific performance of the agreement in favour of the 3rd defendant ?
3. Whether the 3rd defendant refused to purchase the property as claimed by defendants 1 and 2 ?
4. Whether the suit is barred by time as alleged in written statement?
5. Whether there is cause of action for filing the suit ?
6. To what relief ?
Additional Issues :
1. Whether the purchase by D.4 and D.5 is true, valid and binding on plaintiffs ?
Additional Issues :
1. Whether the defendants 15 to 17 are not necessary parties to the suit ?
2. Whether the plaintiffs cannot claim any right or interest over the property from the purchase of the defendants 5 to 7 against whom the suit is dismissed ?”
9. Before the trial court, the 2nd plaintiff got examined as PW.1 and the 1st plaintiff got examined as PW.2 and marked Exs.A.1 to A.16 and Ex.C.1. The 16th defendant was examined as DW.1 and another witness was examined as DW.2 and Exs.B.1 to B.10 were marked.
10. By judgment and decree dt.30.12.1995, the trial court dismissed the suit holding that 2nd plaintiff was not a party to Ex.A.1 agreement of sale and there was no privity of contract between 2nd plaintiff and defendant nos.1 and 2; that 1st plaintiff had already sold Ac.0.50 cents of land covered by Ex.A.1 sale deed and since only 3rd defendant was a party to Ex.A.1, the balance Ac.0.50 cents would belong to 3rd defendant; that 3rd defendant was not interested in enforcing Ex.A.1 and did not want any sale deed in respect of plaint schedule property; and defendant nos.1 and 2 stated that they have returned the money paid by 3rd defendant and cancelled the agreement of sale as far as 3rd defendant is concerned. Although 2nd plaintiff contended that he paid 1/3rd of the sale consideration to defendant nos.1 and 2, the trial court held that there is no evidence of the same and it cannot be said that 2nd plaintiff is the beneficiary under Ex.A.1; that since 2nd plaintiff had no privity of contract with defendant nos.1 and 2, it held that 2nd plaintiff is not entitled to relief of specific performance in respect of ‘B’ schedule property; and therefore, dismissed the suit with costs.
11. Challenging the same, the 2nd plaintiff preferred the present appeal.
12. According to counsel for appellant, the 1st plaintiff, who is the 1st respondent in the appeal died. The appeal was dismissed against 20th respondent/19th defendant on the ground of non- payment of process as per order dt.11.04.2001 passed by this court. Notice to other respondents has been served.
13. The main contention of the counsel for appellant is that the court below should have decreed the suit for specific performance in the appellant’s favour; that even if the appellant was not a party to Ex.A.1 agreement of sale dt.29.10.1982, he is an attestor to Ex.A.1 and was the brother-in-law of the 1st plaintiff, so he should be treated as a beneficiary of Ex.A.1 and should be granted relief of specific performance.
14. Section 15 of the Specific Relief Act, 1963 states as under :
“15. Who may obtain specific performance – Except as otherwise provide by this Chapter, the specific performance of a contract may be obtained by –
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;
(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;
(d) where the contract has been entered into by a tenant for life in due exercise of a power, the reminderman;
(e) a reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and t h e reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach;
(g) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;
(h) when the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company :
Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.”
15. Clause (a) of Section 15 permits obtaining relief of specific performance of a contract by any party to the contract or by the representative in interest of a party or his principal. Admittedly, Ex.A.1 indicates that 2nd plaintiff/appellant herein is not a party to it. Merely because he is an attestor or claims to have paid some amount as part of the consideration paid to defendant nos.1 and 2 he cannot be treated as a party to the agreement of sale or a beneficiary thereunder. In this view of the matter, he is not entitled to seek the relief of specific performance under Ex.A.1.
16. Admittedly, only the 1st plaintiff and 3rd defendant were parties to Ex.A.1 and 1st plaintiff had already sold away Ac.0.50 cents of land, pending suit. Only 3rd defendant can make a claim for the balance Ac.0.50 cents covered by Ex.A.1. Admittedly, 3rd defendant was not interested in seeking relief of specific performance under Ex.A.1 and he has not filed any suit for the said relief. According to defendant nos.1 and 2, he did not wish to purchase the land, that amounts paid by him were returned to him and the agreement of sale was cancelled with the respondent.
17. It is not open to appellant/2nd plaintiff, who is not a party to Ex.A.1, to seek to enforce the rights, if any, belonging to 3rd defendant in the present suit without any authority from 3rd defendant to do so. As stated supra, the appellant/2nd plaintiff has no right in his individual capacity to seek the relief of specific performance.
18. Therefore, I do not find any merit in the appeal and the same is accordingly dismissed, but in the circumstances without costs.
19. Miscellaneous applications, pending if any, in this appeal shall stand closed.
JUSTICE M.S. RAMACHANDRA RAO Date : 09-07-2014 Ndr/*