For specific performance , it is enough to prove that the property belongs to the defendants and possession was delivered as per the agreement - The lower appellate Court totally erred in law in tabling Section 17(1)(a) of the Act against the plaintiff who is a purchaser under Ex.A.1 suit contract. It may be further seen that even as per finding of the lower appellate Court, the 1st defendant who is one of the vendors under Ex.A.1 has got title to the property as it was allotted to his share in the partition with his brothers who are defendants 2 and 3. The 1st defendant is a party to the suit. The plaintiff might have obtained Ex.A.1 agreement for sale from all the brothers in order to obviate any possible future litigation with all the brothers who were jointly entitled for the suit property prior to the partition. It is nobody's case that suit property belongs to any third party than the defendants. The lower appellate Court failed to note that in a suit for specific performance of an agreement for sale between the parties, there is no guarantee or warranty of sale of the vendors, by virtue of decree to be passed by a Court on the basis of such an agreement. What rights the vendors had at the time of the suit agreement or in future, will only pass on to the purchaser and nothing more. If the vendors have no right in the property being sold under the suit agreement for sale, then the plaintiff/purchaser will not get any rights in the suit property inspite of decree for specific performance of such an agreement and inspite of execution of registered sale deed either by the defendants themselves or by the Court on their behalf. The lower appellate Court, in my view did not understand the scope of a decree for specific performance. Simply because the plaintiff did not file tax receipts/cist receipts for the suit lands, the lower appellate Court could not have jumped to the conclusion that no delivery of property took place under Ex.A.1 suit agreement. It is not as if the defendants filed any such land revenue receipts for the suit lands subsequent to the period of Ex.A.1 agreement. In these circumstances, I find on the substantial question of law framed by this Court that the lower appellate Court totally erred in non-suiting the plaintiff after having upheld truth of Ex.A.1 agreement for sale and on flimsy grounds of all the defendants not having title to the suit property and the plaintiff has failed to prove delivery of possession under the suit agreement. In the circumstances, the second appeal deserves to be allowed.


HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              

SECOND APPEAL No.111 of 2000    

05-02-2013

Gullapalli Sooreedamma                                

Bandaru Trinadhudu and another                

Counsel for the appellant: Sri Aravala Rama Rao.

Counsel for the Respondents:

<Gist :

>Head Note:

? Cases referred:

JUDGMENT:  


       The plaintiff who succeeded in the trial Court and who lost in the lower
appellate Court is the appellant in this second appeal.  The plaintiff is sister
of the defendants 1 to 3/respondents 1 to 3.  She filed the suit in the trial
Court for specific performance of Ex.A.1 agreement for sale dated 26.08.1987
said to have been executed by the defendants 1 to 3 in her favour for the plaint
schedule items of land after receiving entire consideration thereunder and
delivered possession of the lands thereunder.  After exchange of notices as per
Exs.A.2 and A.3, the plaintiff filed the suit.  The defendants denied Ex.A.1
agreement for sale and also pleaded that Ex.A.1 might have been fabricated by
the plaintiff.  In effect, they denied the entire transaction covered by Ex.A.1.
        2. This second appeal was admitted on 08.09.2000 in view of substantial
questions of law framed in the grounds of appeal, which are as follows:
      a) whether the findings of the first appellate Court are justified in
holding that the defendants got partitioned their properties in the absence of
any cogent evidence?
      b) whether the 1st appellate Court is justified in holding that the
defendants are not having any right in the property and Ex.A.1 cannot be
enforced?
      c) whether the 1st appellate Court is correct in misinterpreting Section
17 of Specific Relief Act?
      d) whether the 1st appellate is justified by dismissing the suit against
1st defendant inspite of holding that he is having a right over the said
property?
      e) whether the 1st appellate Court is correct in interpreting clause (a)
of Section 17 of the Specific Relief Act?
      f) If any one of the pleadings in the plaint is not proved can a court
reject the entire pleadings?
      g) whether the appellate Court is right in reversing the well considered
judgment of the trial Court which decree the suit for specific performance
basing on cogent reasons and findings after due consideration of the evidence
adduced by the parties and as per the law.
       h) whether the appellate Court is right in giving findings in favour of
the defendants merely on the basis of surmises presumptions and assumptions
without having any proper documentary or oral evidence to support their case.
       i) the court below have totally mislead the evidence and gave findings on
perverse reasoning the other grounds will be urged at the time of hearing.
        3.  After hearing the appellant's counsel, this Court formulated the
substantial question of law as follows:
        Whether the plaintiff can be refused specific performance of Ex.A.1
agreement when the lower appellate Court found the same to be true and correct;
but on the ground that possession was not delivered thereunder and the
defendants 2 and 3 has no title to the suit properties?


        4. After receipt of notices in this second appeal, the defendants 1 and
2/respondents 1 and 2 did not choose to appear before this Court through any
counsel or by themselves.  The second appeal was dismissed against the 3rd
defendant/3rd respondent for default, perhaps for non-payment of bata to him.
Absence of the 3rd defendant/3rd respondent before this Court in this second
appeal and dismissal of the second appeal as against the 3rd respondent has no
effect on this second appeal because as per finding of the lower appellate
Court, the 3rd appellant has no title to the schedule property as the suit
property was allotted to the share of the 1st defendant entirely in the family
partition.  Therefore, presence or absence of the 3rd respondent in this appeal
matters little.
        5. Both the Courts below repelled contentions of the defendants on truth
of Ex.A.1 agreement.  The lower appellate Court after considering evidence of
PWs 1 and 2 and Ex.A.1 came to the conclusion that Ex.A.1 is true and it
contains thumb impressions/signatures of the defendants 1 to 3.  The lower
appellate Court further found that there were no differences between the parties
who are brothers and sister and there was no occasion for the parties to keep
signed papers or papers containing thumb impressions of the defendants with the
plaintiff.  The lower appellate Court ruled out any fabrication of the suit
agreement Ex.A.1 on any stamp papers containing thumb impressions and signatures  
of the defendants 1 to 3.

       6. The lower appellate Court found that the plaintiff was not put in
possession of the suit property.  The suit property consisted of 8 items of land
in Kindam Agraharam of Bondapalli village in Gajapathinagaram Mandal,
Vizianagaram District.  The lower appellate Court also found that all the
defendants 1 to 3 have no title to the suit lands and it was the 1st defendant
alone who has right and title to the suit land in view of partition among them
in which the suit property was allotted to the share of the 1st defendant.  The
1st defendant is also one of the executants of Ex.A.1 agreement for sale.
Placing reliance on Section 17(1)(a) of the Specific Relief Act, 1963, the lower
appellate Court non-suited the plaintiff as she was aware of all the defendants
not having title to the suit lands.  Section 17(1)(a) of the said Act reads as
follows:
17. Contract to sell or let property by one who has no title, not specifically
enforceable:-
(1) A contract to sell or let any immoveable property cannot be specifically
enforced in favour of a vendor or loss-
(a)   "who knowing himself not to have any title to the property, has contracted
to sell or let the property".

The lower appellate Court totally misapplied Section 17(1)(a) of the said Act to
a case of this nature.  Section 17(1)(a) bars specific performance of a contract
in favour of a vendor/seller in case the contract to sell immovable property
executed by a seller/vendor who has no title to the property.  Section 17(1)(a)
can be used only as against a vendor/seller and not as against a
purchaser/vendee.  Section 17(1)(a) of the Act was introduced to prevent misuse
of the provisions of the Specific Relief Act by an unscrupulous vendor who
knowingly enters into a contract with third party inspite of he having no title
to the land or immovable property which is proposed to be sold under the suit
agreement.
The lower appellate Court totally erred in law in tabling Section
17(1)(a) of the Act against the plaintiff who is a purchaser under Ex.A.1 suit
contract.  It may be further seen that even as per finding of the lower
appellate Court, the 1st defendant who is one of the vendors under Ex.A.1 has
got title to the property as it was allotted to his share in the partition with
his brothers who are defendants 2 and 3.  The 1st defendant is a party to the
suit.  
The plaintiff might have obtained Ex.A.1 agreement for sale from all the
brothers in order to obviate any possible future litigation with all the
brothers who were jointly entitled for the suit property prior to the partition.
It is nobody's case that suit property belongs to any third party than the
defendants.  
The lower appellate Court failed to note that in a suit for
specific performance of an agreement for sale between the parties, there is no
guarantee or warranty of sale of the vendors, by virtue of decree to be passed
by a Court on the basis of such an agreement.  What rights the vendors had at
the time of the suit agreement or in future, will only pass on to the purchaser
and nothing more.  
If the vendors have no right in the property being sold under
the suit agreement for sale, then the plaintiff/purchaser will not get any
rights in the suit property inspite of decree for specific performance of such
an agreement and inspite of execution of registered sale deed either by the
defendants themselves or by the Court on their behalf. The lower appellate
Court, in my view did not understand the scope of a decree for specific
performance. 

       7.  Simply because the plaintiff did not file tax receipts/cist receipts
for the suit lands, the lower appellate Court could not have jumped to the
conclusion that no delivery of property took place under Ex.A.1 suit agreement.
It is not as if the defendants filed any such land revenue receipts for the suit
lands subsequent to the period of Ex.A.1 agreement.  In these circumstances, I
find on the substantial question of law framed by this Court that the lower
appellate Court totally erred in non-suiting the plaintiff after having upheld
truth of Ex.A.1 agreement for sale and on flimsy grounds of all the defendants
not having title to the suit property and the plaintiff has failed to prove
delivery of possession under the suit agreement.  In the circumstances, the
second appeal deserves to be allowed.

        8. In the result, the second appeal is allowed setting aside decree
passed by the lower appellate Court and confirming decree of the trial Court.
The plaintiff/appellant is entitled for specific performance of Ex.A.1 agreement
from the defendants 1 and 2 and all other consequential reliefs.  No costs.

____________________________    
SAMUDRALA GOVINDARAJULU,J        
Dt.5th February, 2013

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