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Saturday, December 21, 2013

Agreement of sale - suit for specific performance based on Ex. A13 earlier agreement of sale - another suit for specific performance based on Ex. A 1 later agreement of sale is not maintainable as the earlier documents is still alive - who filed the suit first is not the question - whose document is the earlier one is the question = Smt.Y.Vijaya;akshmi ....Appellant J.Ravi Sharma and others ...Rewspondents = published in judis.nic.in/judis_andhra/filename=10635

 Agreement of sale - suit for specific performance based on Ex. A13 earlier agreement of sale - another suit for specific performance based on Ex. A 1 later agreement of sale is not maintainable as the earlier documents is still alive  - who filed the suit first is not the question - whose document is  the earlier one is the question =

However, once there exists another agreement, which is anterior
to Ex.A1, the relief of specific performance could not have been granted to the
appellant at all.  
The trial Court has rightly commented upon the conduct of
respondent No.3 in executing both the agreements. In case the appellant was
serious enough, she ought to have claimed the relief of declaration to the
effect that Ex.A13 was not validly executed or that it is otherwise not
enforceable, in law.  No such steps were taken.

 As long as Ex.A13 remains and execution thereof is not disputed, there is no
way that the appellant can be granted the relief of specific performance.  Even
if one goes by comparison, it emerges that the witnesses who figured in Ex.A13
were also examined, whereas in respect of Ex.A1, except P.W.1, no other 
witnesses were examined.  The discrepancies as to dates were also pointed out.
In this scenario, the trial Court was left with no alternative except to decree
the suit filed by respondent Nos.1 and 2 and once that decree holds the field,
the question of granting relief of specific performance in favour of the
appellant does not arise.

        The appeals are accordingly dismissed.  There shall be no order as to
costs.

        The miscellaneous petitions filed in these appeals shall also stand
disposed of.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE M.S.K.JAISWAL            

L.P.A.No.174 of 1999 AND BATCH  

12-12-2013

Smt.Y.Vijaya;akshmi ....Appellant

J.Ravi Sharma and others ...Rewspondents

Counsel for Petitioner: party in person

Counsel for Respondent:-----------

<Gist:

>Head Note:

?Cases Referred:


COMMON JUDGMENT: (per the Hon'ble Sri Justice L.Narasimha Reddy)      

These two appeals are between the same parties and in relation to the same
property. Hence, they are disposed of through a common judgment.

For the sake of convenience, the parties are referred to as arrayed in
L.P.A.No.174 of 1999.

The appellant filed O.S.No.131 of 1980 in the Court of the Principal Subordinate
Judge, Visakhapatnam, against                  Sri G.Punnayya, respondent No.3,
for the relief of specific performance of an agreement of sale, dated 05.01.1980
(Ex.A1).  It was pleaded that respondent No.1 offered to sell the property for a
consideration of Rs.1,00,000/- and accordingly,  Ex.A1 was entered into.  On the
date of agreement, a sum of Rs.1,116/- was said to have been paid as advance.
She further pleaded that one of the contentions incorporated in Ex.A1 was that
the permission from the Special Officer and Competent Authority, Urban Land
Ceiling (for short 'the Special Officer") must be obtained, since Visakhapatnam
is covered by the provisions of the Urban Land (Ceiling and Regulation) Act (for
short 'the Act') and that such a permission has been obtained in the year 1980
itself by submitting a joint application of herself and respondent No.1. She
pleaded that in spite of repeated demands, respondent No.1 did not come forward
to execute the sale deed.

During the pendency of O.S.No.131 of 1980, respondent Nos.1 and 2 herein filed
O.S.No.37 of 1981 in the same Court against respondent No.3 and his sons, 
defendant Nos.4 to 6, for the relief of specific performance of an agreement of
sale, dated 22.12.1979, said to have been executed by respondent No.3 in their
favour in respect of the same property.  They pleaded that the property was
agreed to be sold to them for a consideration of Rs.85,000/- and a sum of
Rs.1,500/- was paid as advance.  They too complained that respondent No.3 has 
not been coming forward to execute the sale deed, though they are ready and
willing in all respects.

Over the period, while respondent Nos.1 and 2 were impleaded in O.S.No.131 of
1980 as defendant Nos.2 and 3, the appellant came to be impleaded as defendant 
No.5 in O.S.No.37 of 1981.

The trial Court did not club the suits and separate trial was conducted.
Through separate judgments, dated 24.04.1984, the trial Court decreed O.S.No.37
of 1981. O.S.No.131 of 1980 was decreed only to the extent of granting the
relief of refund of a sum of Rs.1,116/- paid as advance and the one for specific
performance was rejected.  The appellant filed A.S.Nos.14 and 742 of 1985
against the said decrees, before this Court. Through separate judgments, dated
06.08.1997, a learned Single Judge of this Court dismissed both the appeals.
Hence, these two Letters Patent Appeals.

Arguments on behalf of the appellant are advanced by her husband, Sri Narayana
Murthy.  He contends that the execution of Ex.A1 was not disputed by respondent
No.3 and the very fact that the permission under the Act was obtained, adds
credibility to it.  He contends that the facts of the cases clearly demonstrate
that the agreement in favour of respondent Nos.1 and 2 was brought into
existence only with a view to defeat the rights of the appellant under Ex.A1.
He contends that the very fact that respondent Nos.1 and 2 did not take any
steps to obtain clearance under the Act demonstrates the fictitious nature of
Ex.A13. He has also made extensive submissions about the plea of respondent No.3
that the property was joint and that he signed the agreement in his capacity as
Kartha of the joint family.  According to them, the trial Court and the learned
Single Judge of this Court did not appreciate the evidence on record in the
proper perspective.

No one had appeared for the respondents.

Though two suits were filed by the respective parties, for all practical
purposes, it is a case for the relief of specific performance being claimed by
two separate parties vis--vis the same property and against the same persons.
On the basis of the pleadings before it, the trial Court framed the following
issues in the respective suits.

O.S.No.131 of 1980:
(1) Whether the plaint schedule property is the absolute property of the
defendant or the joint property of the defendant and his sons?
(2) Whether the agreement to sell dated 05.01.1980  is not supported by
consideration as such it is invalid and inoperative?
(3) Whether the defendant agreed to bear the stamp and registration charges?
(4) Whether the plaintiff is ready and willing to perform his part of contract?
(5) Whether the agreement to sell is enforceable at law against the defendant?
(6) Whether there is any breach of contract if so whether the defendant is
liable to pay damages?
(7) Whether the suit is maintainable under law for recovery of physical
possession of the property?    
       
O.S.No.37 of 1981:

(1) Whether the suit agreement dated 22.12.1979 is true, valid and binding on
the 5th defendant or whether it is ante-dated and a collusive agreement?
(2) Whether the plaint schedule property is joint family property?
(3) Whether the agreement dated 05.01.1980 executed by D1 in favour of D5 is
valid and binding on the plaintiffs?

Separate evidence was recorded.  In O.S.No.131 of 1980, the husband of the
appellant deposed as P.W.1 and Exs.A1 to A16 were filed.  Respondent No.3
deposed as D.W.1 and he filed Exs.B1 to B4.  In addition to that, Exs.X1 to X8
were taken on record.  In O.S.No.37 of 1981, respondent Nos.1 and 2 examined
P.Ws.1 to 3 and filed Exs.A1 to A6.  The husband of the appellant deposed as
D.W.1 and he filed Exs.B1 to B20. The nature of relief that was granted in the
suits has already been indicated.

In the appeals filed before this Court, no points as such were framed, but both
the appeals were dismissed. We are of the view that the following points arise
for consideration, in these L.P.As.

(1) Whether respondent Nos.1 and 2 have proved the execution of Ex.A13? 
(2) If Ex.A13 is validly executed and it remains in the field, whether the
appellant derives any rights under Ex.A1?

Point No.1: Respondent No.3 was, admittedly, the owner of the suit schedule
property at Visakhapatnam.  It is he who proposed to sell the property by
issuing an advertisement in a Newspaper.  The appellant is said to have come to
Hyderabad, where respondent No.3 was living, and the agreement Ex.A1 was entered
into. Here itself, it needs to be mentioned that though the date '05.01.1978' is
mentioned therein, the stamp paper was purchased on 05.01.1980. In case there
was a serious contest by respondent No.3 in this behalf, things would have been
different altogether.  However, a perusal of Ex.A1 discloses that underneath the
signature of respondent No.3, he has put the date as 05.01.1980.  Therefore, the
date mentioned in Ex.A1, namely 05.01.1978, is a mistake.

        The evidence adduced on behalf of the appellant further discloses that a
joint application for obtaining permission under the Act was submitted by
herself and respondent No.3, marked as Exs.X1 and X2, and a permission in that
behalf was granted by the Special Officer through Ex.X6.

        Respondent No.3, no doubt, admitted the execution of Ex.A1.  His version,
however, was that much before Ex.A1, he executed Ex.A13 in favour of respondent
Nos.1 and 2 for  consideration of Rs.85,000/- and thereafter, the father and
P.W.1, husband of the appellant, came to him at Hyderabad offering to purchase
the property for a sum of Rs.1,00,000/-.  He has also stated that when he
informed them about the existence of Ex.A13, P.W.1 informed him that he would
discuss the matter with respondent Nos.1 and 2 and settle the issue.

        On their part, respondent Nos.1 and 2 filed O.S.No.37 of 1981 for the
relief of specific performance of agreement of sale, Ex.A13. Though they did not
implead the appellant herein in their suit, she came to be impleaded as
defendant No.5 at a later point of time.  To prove Ex.A13, respondent Nos.1 and
2 examined P.Ws.1 to 3.  Though respondent No.3 did not enter the witness box,
he did not dispute the execution thereof.  Apart from there not being any denial
from respondent No.3, two witnesses of the document, were examined as P.Ws.2 and  
3.

        In case any finding was recorded in O.S.No.37 of 1981, behind the back of
the appellant, she could have certainly ignored it while pursuing the remedies
in her suit. After becoming a party, to that suit, she filed written statement
and her husband deposed as D.W.1.  Nothing was elicited from the witnesses 
examined in that suit, to doubt the execution of Ex.A13.  Incidentally,
respondent No.3, who remained ex parte in O.S.No.37 of 1981, contested 
O.S.No.131 of 1980 and deposed as D.W.1.  In the course of extensive cross-
examination, nothing was elicited from him, to establish that Ex.A13 was not
validly executed. The doubt, if at all, was only about Ex.A1, in relation to its
date and other aspects.  It is a different matter that the trial Court did not
believe the plea of respondent No.3 about the difference as to the dates.  The
net result is that Exs.A1 and A13, agreements, dated 05.01.1980, and 22.12.1979,
executed in favour of the appellant and respondent Nos.2 and 3 respectively,
have been proved.  Neither in the appeals nor before us, the appellant is not
able to demonstrate that Ex.A13 was not executed at all. Therefore,  we hold
that Ex.A13 is proved.

Point No.2:  It is, no doubt, true that the appellant was relatively well
prepared for execution of the sale deed inasmuch as she was instrumental in
obtaining the clearance from the Special Officer and filed the suit earlier in
point of time.  However, once there exists another agreement, which is anterior
to Ex.A1, the relief of specific performance could not have been granted to the
appellant at all.  The trial Court has rightly commented upon the conduct of
respondent No.3 in executing both the agreements. In case the appellant was
serious enough, she ought to have claimed the relief of declaration to the
effect that Ex.A13 was not validly executed or that it is otherwise not
enforceable, in law.  No such steps were taken.

 As long as Ex.A13 remains and execution thereof is not disputed, there is no
way that the appellant can be granted the relief of specific performance.  Even
if one goes by comparison, it emerges that the witnesses who figured in Ex.A13
were also examined, whereas in respect of Ex.A1, except P.W.1, no other 
witnesses were examined.  The discrepancies as to dates were also pointed out.
In this scenario, the trial Court was left with no alternative except to decree
the suit filed by respondent Nos.1 and 2 and once that decree holds the field,
the question of granting relief of specific performance in favour of the
appellant does not arise.

        The appeals are accordingly dismissed.  There shall be no order as to
costs.

        The miscellaneous petitions filed in these appeals shall also stand
disposed of.
______________________  
L. NARASIMHA REDDY,J    

_____________________  
M.S.K.JAISWAL,J  
Dt:02.12.2013

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