Specific Performance - Dismissed - No refund be ordered - there is nothing to prevent to give notice or file suit without waiting for fag-end period of limitation period, suffice is say, plaintiff was not really and practically ready and willing but for pleading sake to get over plaint rejection propounded in notice And plaint. It is how apart from no truth even for the silence of the plaintiff without even expressing his readiness and willingness to perform his part of the contract to seek specific performance to obtain sale deed by payment of major portion of consideration remained unpaid and from hardship to the defendant/s if ordered performance from showing from plaintiff`s own evidence from contents of Ex.A17 of value of lands later abnormally increased, plaintiff not entitled to the equitable relief of specific performance and for not even pleaded any alternative relief for refund or damages or compensation, not entitled even to order refund though under general law of contract Act from Sections 65 to 70 it could be , from the specific legal bar under the special law of specific relief Act. The trial Court thereby went wrong totally in ignoring these vital legal and factual aspects which go to the root of the matter in decreeing the suit for specific performance instead of dismissing for specific performance. Thus, the trial Court`s decrees in both suits covered by the common judgement for both suits are liable to be setaside by allowing the appeals.

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

C.C.C.A.Nos.147 of 1997 and batch

03-02-2016

Vijender Kumar Kedia .Appellant

Salesh  . Respondent

Counsel for the Appellants : Sri P.Jagadish Chandra Prasad

 Counsel for the Respondent:  Sri A.Narasimha Rao

<Gist :

>Head Note:

? Cases referred:

1.      AIR 1989 SC 193
2.      AIR 1987 SC 1242
3.      AIR 1966 SC 735,
4.      AIR 1954 SC 458
5.      AIR 1953 SC 235
6.      (2008)17 SCC 491
7.      AIR 1995 SC 167
8.      AIR 1988 SC 719(B)
9.      1991 (3) SCC 331
10.     AIR 1999 SC 1441
11.     AIR 2005 SC 439 = (2005)2 SCC 217  
12.     AIR 2009 SC 422
13.     (2010)10 SCC 512
14.     AIR 1995 SC 945
15.     2006(7) Supreme 388
16.     (1996)4 SCC 593
17.     AIR 2005 SC 5303
18.     2005(2) ALD 631
19.     (2000)6 SCC 420
20.     AIR 1971 SC 1238
21.     (1999)6 SCC 337
22.     (2008)5 SCC 676
23.     Civil Appeal No.4841 of 2012, dt.03.07.2012
24.     (2012)1 SCC 656
25.     (2008)7 SCC 310
26.     (2008)1 SCC 45
27.     (1996)5 SCC 589
28.     2015 Law Suit (SC) 636
29.     (2005)7 SCC 534
30.     AIR 2008 SC 1786
31.     (2005)6 SCC 243
32.     AIR 2009 SC 2157
33.     (2011)1 SCC 429
34.     (2004)6 SCC 649
35.     (2002)5 SCC 481
36.     (1995)5 SCC 115
37.     AIR 1997 SC 1751
38.     (1993)1 SCC 519


HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

CCCA Nos.147 & 149 of 1997  

COMMON JUDGMENT:      
        The respective sole defendants are the appellants herein and
the respective self-same sole plaintiffs in both the matters are the
respondents.  Both the suits in O.S. No.1960 of 1988 and 1959 of 1988
are filed by the self-same plaintiff Saleh against the respective
defendants Dhanraj and Vijenderkumar Kedia.  The trial Court on
separate trial decreed both the suits for the relief of specific
performance of the contract for sale respectively, to execute and
register sale deeds on receiving balance sale consideration and to
deliver possession and with costs.
        2) The contentions in the grounds of appeal common almost in
both the appeals of the respective suits are that the decree and
judgment respectively of the trial Court supra are contrary to law,
unlawful and against probabilities of the case, perverse and
misconceived against the canons of justice.
        3) It is specifically contended by the defendant-appellant
respectively supra that the trial Court ought to have seen that sale
agreements Ex.A-21 and A-1 respectively on which the suits are
based, are spurious, plaintiff P.W-1 admitted that he was not in India
at the time of execution of the agreement, the trial Court should
have seen that it was not the case of the plaintiff that the agreement
was executed by his nominee on his behalf, that too when it bares
signature of the plaintiff and therefrom trial Court ought to have
dismissed the suit and by appreciating the fact that defendant
respectively did not execute and sign the sale agreement, that the
trial Judge should have sent the signatures of the defendant in
dispute to an expert for examination and comparison and plaintiffs
inaction in cause sending also substantiates the signature on the
agreement respectively is not of the defendant respectively and it is
a forged one respectively.
        4) It is the further contest that the trial Court should have seen
that there is no valid contract and agreement and the question of
alleged readiness and willingness to perform his part of the contract
by the plaintiff does not arise, that Guljarilal Kedia is not related to
the defendant in O.S. No.1958 of 1988 and there is no relationship for
his managing the property of the defendant to allege or presume, but
for son to the defendant in O.S. No.1959 of 1988, that Ex.A-19
memorandum dated 11.02.1986 no way speaks Ex.A-21 agreement,    
merely because it is alleged other nominees of Guljarilal Kedia
executed sale deeds in favour of plaintiff for the so called sale
agreement Exs.A-2 to A-6 dated 05.11.1985 (pursuant to which
alleged sale deeds said to have been obtained by plaintiff), that does
not automatically follow that these defendants/appellants in A.S.
No.147 & 149 of 1997 also should have executed sale deeds, when
they not even executed so called agreements and any persons
connected with the same even not examined and D.W-3 Govindam  
one of the alleged executants of Ex.A-6 agreement even denied said
execution in favour of the plaintiff and thereby sought for setting
aside the trial Courts suit decree for specific performance and to
dismiss the suit claim by allowing the appeal respectively.
        5) It is also the contention that the trial Court should have seen
the Ex.A-17 plaint copy in O.S. No.1947 of 1988 will no way help the
case of the plaintiff, it is a suit for injunction against plaintiff and
merely because alleged nominees of Guljarilal Kedia, father of the
defendant herein, executed the so called sale deeds in favour of the
plaintiff pursuant to the agreements Exs.A-2 to A-6 that does not
automatically follow defendant herein also should execute sale deeds
and the trial Court therefrom went wrong in decreeing the suit for
specific performance instead of dismissing the same to set aside the
trial Courts decree granting specific performance and dismiss the
suit claim by allowing the appeal.
        6) It is also the contest of the respective appellants/defendants
through learned senior counsel Sri Venugopal in the course of hearing
arguments in support of the grounds of appeal, that plaintiff is not
ready and willing to perform his part of contract and there is delay
and latches on his part and his silence for nearly three years after the
agreement itself disentitles to the equitable relief and also from the
factum of increase in land values even for argument sake the
agreement is proved as if duly executed and enforceable and thereby
sought for setting aside the trial Courts respective decree and
judgments by allowing the appeals dismissing the plaintiffs suit
claims respectively.
        7) It is the contention of Sri Prakash Reddy, the learned senior
counsel for the respondent/plaintiff in both the appeals common that
the evidence on record proves due execution of the said contract for
sale respectively by the two defendants for the plaint schedule
respective extents and the two suits for specific performance filed
within time and plaintiff pleaded readiness and willingness and the
inadvertent version in a stray sentence in the deposition of P.W-1
cannot make a mountain of the molehill as the passport already
exhibited covered by Ex.A-32 in both the suits clearly speak the
factum of the plaintiff was staying in India and going abroad with
frequent visits and it is not a continuous stay outside India, the sale
agreements were executed in the presence of plaintiff by the
defendants respectively and in other agreements the vendors
executed sale deeds but for the two defendants respectively herein
and the alleged non-execution of agreement or signature of the
defendant in dispute is untrue and the suit sale agreements duly
executed and plaintiff is ready and willing to perform his part of the
contract and maintained the suit for specific performance and trial
Court rightly decreed the suits and thereby for this Court while
sitting in appeals, there is nothing to interfere, hence to dismiss both
the appeals confirming trial Courts decree and Judgment for the
relief of specific performance of the Contracts for sale with
consequential reliefs of possession etc.  It is also the contention of
the learned senior counsel for the respondents/plaintiffs in both the
appeals that there is an explanation for giving the notice well within
limitation for earlier from the demands of plaintiff, the defendants
respectively postponing and ultimately in issuing notice demanding
for specific performance and there are other agreement vendors from
whom sale deeds the plaintiff obtained one after another and in that
process from the demand and postponing it is the plaintiff that issued
notice demanding for specific performance and filed suit and thereby
there are no delays or latches for plaintiff always ready and willing to
perform his part of contract respectively and the trial Court rightly
decreed the suits and for this Court while sitting in appeal even
merely because another view also possible, that cannot be the
ground to interfere muchless to disturb the trial Courts reasoned
findings with conclusions.
        8) Heard at length both sides and perused the material on
record and also the expressions referred in support of rival
contentions.  Now, the common points that arise for consideration in
both the appeals are:
(i) Whether the respective defendants duly executed the suit sale
agreements and if so, the plaintiff is entitled to the relief of specific
performance of the contracts for sale to obtain sale deeds and to get
delivery of possession within the judicial discretion?
(ii) If not the trial Courts decree and judgment in favour of the
plaintiff/respondent herein respectively are unsustainable and
requires interference by this Court while sitting in appeal and if so to
what extent and with what observations?
(iii) To what result?
        9) Before coming to further facts, while deciding the 1st appeal
from entire matter at large in arriving at a just decision under Order
41 Rule 33 CPC, it is the duty of the appellate Court to consider the
entire material on record for reapreciation of the same on facts and
law and come to an independent conclusion even to support the
decision of the trial court and in particular if to differ, where it is
unsustainable including on any finding and to what extent, it is apt to
refer the legal position on the specific performance of the contract
for sale that plaintiff has to win or lose his case on own strength with
pleading of ready and willing to perform his part of contract and it is
not only readiness but also willingness to aver that is required to be
established not only by plea but also by evidence right from entering
into the contract for sale till the suit filed and even thereafter till
delivery of judgment.  Further Court has to consider the hardship and
also increase in the land values by taking judicial notice more
particularly of the urbanized properties in grant or refusal of the
reliefs.
        9(a). It is the well-settled proposition of law in general
appreciation of all cases (though not in a suit for specific
performance) from S.B. Noronal V. Prem Kundi  that, pleadings are
not statutes and legalism is not verbatim. Common sense should not
be kept in cold storage, when pleadings are construed. In Ram Sarup
Gupta Vs. Bishur Narain Inter College  referring to the constitution
Bench expression in Bhagwati Prasad V.Chandramaul  and  
Sheodhari Rai V. Suraj Prasad Singh  Trojan and Company V. R M N  
N Nagappa Chettiar  it was held that the pleadings should receive a
liberal and not pedantic approach as meant to ascertain the
substance and not form. In Bachhaj Nahar V. Nilima Mandal  at
para No.12, it was held in a suit for injunction based on easementary
right, that object and purpose of pleadings and issues is to ensure
that litigants come to trial on clearly defined issues to prevent cases
being expanded on grounds being shifted during trial.  Though
generally no plea, no evidence can be looked into and for no issue no
finding can be given; it is not always the static principle from the
fact that even a plea not made specifically from deficiency in
pleadings, but if covered by implication and evidence let in and
parties know the case, it can be looked into and even to give finding
no issue framed is of no bar to formulate a point and decide.  Burden
of proof in such matters, pales significance as what is necessary is
party shall aware of the plea and let in evidence for the Court to give
finding from the hearing covering the lis but not outside the scope.  It
was also held therein that even alternative remedy not pleaded if
entitled, Court can grant it where it is appropriate to do so, like no
legal bar.  In Balasankar Vs. Charity Commissioner, Gujarat  at
para-19-it was held that, burden of proof pales significance when
both parties adduced evidence and it is the duty of the court to
appreciate the entire evidence adduced by both sides in deciding the
lis. Further the party proved in possession of best evidence is bound
to produce the same to throw light on the lis and to unfold any truth
and thereby cannot take shelter on the abstract doctrine of burden of
proof saying burden not on him to prove by filing the same, as laid
down in NIC vs. Jugal Kishore , and in Lakhan Sao Vs. Dharam
Chowdhary .
      9(b). It was also laid down regarding appreciation of evidence
in some of the expressions vividly that, appreciation of evidence is
no doubt from experience and knowledge of human affairs depending
upon facts and circumstances of each case and regard had to the
credibility of the witness, probative value of the documents, lapse of
time if any in proof of the events and occurrence for drawing
inferences, from consistency to the material on record to draw
wherever required necessary inferences and conclusions from the
broad probabilities and preponderance and from the over all view of
entire case to judge as to any fact is proved or not proved or
disproved.  In this context in Vidhyadhar V. Manikrao  it was held
where defendants alleged sale deed executed by another defendant
in favour of plaintiff was fictitious and bogus but not supported the
plea by entering into witness box on oath and having avoided for no
reason and plaintiffs case when proved in the suit for possession
held such a contention of defendant with no proof can be rejected
also by drawing inference from not entering witness box for no
reason.  The principle therein is where it warrants Court can draw
adverse inference, no doubt depends on facts and circumstances as
part of appreciation of evidence as to any fact is proved or not
proved or disproved.  Further, as part of appreciation, in Janaki
Vashdeo Bhojwani V. Indusind Bank Ltd.  on the scope of power of
attorney competence to depose in the place of principal held though
it empowers to act on behalf of principal, confines only to the acts
done by the power of attorney holder in exercise of the power of
attorney and would not include to depose in place and instead of
principal in respect of such acts done by the principal and not by
power of attorney holder and principal can have a personal
knowledge over and in respect of which, in appreciation of
deposition of such power of attorney holder with reference to facts
and his acts in contra distinction to acts of principal within his
personal knowledge which power of attorney cannot depose and
same proposition is later relied upon in several subsequent
expressions including M/s.Shankar Finance & Investments V. State
of A.P , Mankaur V. Hartar Singh Sangha .
        9(c). Coming to suits for specific performance of the contract,
it was held by the Apex Court in Jugraj Singh Vs. Lab Singh  and
later even in Fakheer Chand Vs. Sudesh Kumar , that the
compliance with readiness and willingness has to be in spirit and
substance and not from even mere pleadings and the continuous
readiness and willingness that to be established has to be seen from
the conduct of the plaintiff throughout not only from the pleadings
but also from the evidence and circumstances on facts. It was held
therein that from raising prices after agreement and delay in seeking
relief by plaintiff is attributable to him are no doubt the grounds to
deny equitable relief for specific performance but for to suitably
compensate the plaintiff.  Fakheer Chand supra relied upon Kanshi
Ram Vs. Om Prakash .  Also in  Aniglace Vs. Ram Latha , it was
held that the basic principles behind Section 16 of the specific relief
Act to consider for person seeking relief are that the plaintiff must
manifest that his conduct has been blemishless throughout.  No doubt
mere pleading about the plaintiffs ready and willingness is not
sufficient to show that he prepared to perform his part of contract as
laid down in 1999 (2) L.S.(A.P) 186. In Gomibai V. Uma Rastogi
held at para No.80 of merely because agreement of sale is proved, it
is not necessary to pass decree for specific performance being a
discretionary relief to exercise judiciously by referring to Jugraj
Singh and Vidhyadhar among other expressions supra.  In Motilal
Jain V. Ramdasi Devi , it was held on sufficiency of pleading to
comply Section 16(c) of the Act that the averment as to readiness
and willingness in plaint is sufficient if the plaint on reading as a
whole clearly indicates that plaintiff was always and is still ready and
willing to fulfill his part of the obligation as such averment is not a
mathematical formula.  On facts held plaintiff paid not only 2/3rds of
the consideration but also sent three notices after the agreement
expressing readiness and willingness to say same is apparent
therefrom, since delay in filing the suit arisen from third parties
acquiring rights in the subject matter of the suit.  It referred forms
47 and 48 of I schedule of C.P.C that were relied in R.C. Chandiok V.
Chunnilal  and a subsequent three Judge bench expression in
Sayyed Dastagir V. T.R.Gopalakrishna Shetty .  The subsequent
expression of the apex Court in Ramesh Rameshwar Prasad V.  
Basutilal , it was held when plaint contained statement of readiness
and willingness, rejection of plaint on that ground or dismissal of
appeal as if pleaded not ready and willing wont sustain.  In Church
of Christ Charitable Trust and Educational Charitable Society,
rep. by its Chairman V. Ponniamman Educational Trust rep. by its
Chairperson  it was held from para 10 to 14 referring to Forms 47
and 48 of Appendix-A of C.P.C and Order VII Rule 11 C.P.C of it is
mandatory for the plaintiff to seek the relief to aver all material
facts and in the suit for specific performance not only show cause of
action but also the date of agreement and same not barred by time
and if there is no pleading of readiness and willingness, plaint liable
to be rejected.  It also discussed further that a power of attorney
unless coupled with interest saved by Section 202 of the Contract
Act, is revocable referring to Suraj Lamp and Industries Pvt. Ltd. V.
State of Haryana  and in further saying from Para No.6 of the relief
from specific performance is discretionary under Section 20 of the
Act as also held referring to the first decision of 1937 Madras in
Sirigineedi Subbarayudu among others in Mohammadia  
Cooperative Building Society Ltd. V. Lakshmi Srinivasa
Cooperative Building Society Ltd.  In Silvey V. Arun Varghese  it
was held referring to Sections 16(c) and 20 of the Act in para Nos.8 to
14 also referring to Lourdu Mari David V. Louis Chinnaya
Arogiaswamy  that the conduct of the defendant in specific
performance suit of plaintiff cannot even be ignored, while weighing
the question of exercise of discretion for decreeing specific
performance or not.  In Nandkishore Lalbhai Mehta V. New Era
Fabrics  that even in a suit for specific performance, pleading is a
pleading which does not contain evidence that required to be let in.
In Aniglase Yohannan V. Ramlatha  it was held that indication in
the plaint that plaintiffs conduct had been blemishless throughout
entitling him to seek for specific performance.  Where the essential
facts contained in the plaint let to an inference of plaintiffs
readiness and willingness, same can be construed as compliance of
Section 16(c) of the Act and for that referred Motilal Jain supra
among other expressions.  In Bal Krishna V. Bhagwan Das  it was
held that it is mandatory for the plaintiff to plead readiness and
willingness to perform the contract while seeking specific
performance which is no doubt depends on judicial discretion to
satisfy from facts and circumstances to grant or not of the equitable
relief and any unfair advantage to plaintiff and where it involve
hardship to defendant also the factors for consideration in exercise of
the judicial discretion and referred Motilal Jain supra and Umabhai
V. Nilkant D Chawan  of conduct of parties as per settled law
necessary to appreciate to arrive at a finding whether plaintiff is all
along and still and ready and willing to perform his part of the
contract as is mandatorily required under Section 16(c) of the Act to
determine not from bare averment in the plaint or statement or in
examination in chief but from entire facts and attending
circumstances in the evidence brought on record with reference to
pleadings.  No doubt, as held in Azhar Sulthana V. D.Rajamani  it
is not necessary that entire amount of consideration payable should
be kept ready by plaintiff but for able to secure in support of plea of
readiness and willingness.  On facts held plaintiff failed to establish
readiness and willingness all along to perform her part of contract
and it would be unnecessary then to go into bonafides of the
defendants where plaintiff could not prove his case by preponderance
of probabilities. In J.P.Builders V. A.Ramdas Rao  on the test to
determine readiness and willingness, it is held there cannot be a
straight jacket formula but for to determine from entirety of facts
and circumstances relevant showing intention and conduct of plaintiff
as a condition precedent for grant of relief with plea and proof and in
the absence of such plea plaint is liable to be rejected and even
pleaded for absence of such proof not entitled to the relief and also
referred Chandiok supra among other expressions. In P.DSouza V.
Shondrilo Nadi  held referring to Nirmala Anand  that agreement
providing liquidated damages be attracted only where defendant
commits breach of terms of the contract for plaintiff in the option to
invoke and that no way bars entitlement or not to reside specific
performance and escalation of prices no doubt not a sole ground to
grant or refuse but for one of the factors with reference to it of
unforeseen situation and hardship to the defendant etc., in refusing
the relief.  In N.P.Thirugnanam V. R.Jaganmohana Rao  it was
held referring to Section 16(c) and 20 of the Act of continuous
readiness and willingness on the part of the plaintiff to plead and
prove the condition precedents to consider for grant of the relief for
specific performance and for that availability of consideration
amounts conduct of plaintiff and attending circumstances with
reference to plea of readiness and willingness always be looked into
from evidence also and on facts held failed to make out case for
disentitlement to the relief of specific performance.  The Apex Court
in K.S.Vydyanadhan V. Vairavan  held that though time stipulated
in the agreement even not made essence of the contract, it must not
lose significance and attention of the Court.  It was held that, it is
high time to consider the time stipulated has some meaning, not for
nothing, could such time limit would have been prescribed; the Court
should bear in mind in deciding what is the time stipulated and what
are the steps to be taken by the one or the other party and what was
the part performance done pursuant to it.  The stipulations in the
agreement should be read in combination with subsequent events and
conduct of the parties including in deciding as to really the party is
ready and willing in granting or refusing the relief and for
entitlement or not of the relief from otherwise.  On facts, it was held
total inaction of the plaintiff seeking specific performance relief, for
2  years in violation of the agreement stipulating time limit though
not essence of the contract, it would be inequitable to give relief of
specific performance to such purchaser and to that conclusion
referred the constitution bench expression in Chandrani V.
Kamalrani  and with reference to it of time essence of the contract
is not with any presumption.  However, the Court may infer that it is
to be performed in a reasonable time from the terms of the contract,
nature of the property and surrounding circumstances relevant
including the time limit specified in the agreement and from conduct
of parties besides urban properties prices have been going up shortly
over the last few decades particularly after 1973 in taking notice of
the same as a relevant circumstance.
        10) Thus, it is the settled law from above expressions placed
reliance by one or other of both sides that in the suit for specific
performance that plaintiff has to win or lose his case on his own
strength and not on the weak case of the defendant and in seeking
the equitable relief, he has to come with clean hands to do equity,
thereby court has to look into the case of the plaintiff first and if
able to show from his very case entitlement, then to consider the
defence, if at all still disentitled, even to exercise the discretion only
there from no doubt conduct of the defendant and any false plea of
the defendant can also be weighed against in arriving to grant the
relief where even from plaintiffs making out the case.  It is further
held that the limitation prescribed of three years or the suit claim
made within that time itself does not entitle to the equitable relief.
It is because, mean time there is possibility of value of lands go up
made change may several other factors inference.  Besides that the
increase in prices and the hardship of the defendants is also the
weighing factors even though plaintiff otherwise entitled to the relief
to refuse the judicial discretionary relief.
        11) From the above propositions, now coming to the facts
further:
      11(a). In O.S. No.1959 of 1988, it is the case of the plaintiff
that the defendant executed the sale agreement Ex.A-1 dated
05.11.1985 in respect of the suit premises 19-2-224/E, Ramnasthpura,
Niralam Tank road, Hyderabad saying the defendant is the owner and
possessor of the same and the contract for sale entered for
Rs.2,27,400/- at Rs.200/- per Square yard and the defendant
received advance of Rs.50,000/- from plaintiff and passed receipt
and it was stipulated in the agreement to complete the sale
transaction to obtain sale deed by payment of balance within three
months from the agreement date.  However, time mutually can be
extended including for payment of balance sale consideration on or
before registration of sale deed, the plaintiff was always ready and
willing to pay balance from the date of agreement but defendant has
not been cooperating and with ulterior motive avoiding execution of
sale deed which made plaintiff to send telegraphic notice for which
he received reply and he got published in Siyasat Daily on 07.11.1988
(Ex.A-12 with English translation in Ex.A-13) with false allegations for
which the defendant got published reply under Ex.A-14 = A-15 on
13.11.1988 and as the defendant is avoiding execution of sale deed
preventing plaintiff from obtaining possession, constrained to file suit
for specific performance with relief of possession and profits.
        11(b) The written statement of the defendant is while denying
plaint averments and with contest of he never executed the sale
agreement dated 05.11.1985 in favour of the plaintiff and did not
receive from plaintiff Rs.50,000/- part consideration and there is no
agreement between them muchless by payment of any amount and    
the alleged agreement was a forged one and created for suit purpose
and defendant is not party to the agreement and question of alleged
extension of time for getting registered sale deed fixed beyond three
months does not arise, so also of any payment of balance sale
consideration and readiness and willingness, that the alleged
demands by plaintiff with readiness to receive balance consideration
and execute sale deed are untrue and the plaintiff is not entitled to
any of the reliefs either for specific performance of the contract or
for possession or profits and sought for dismissal of the suit.
        11(c). The trial Court therefrom framed the following issues:
(i) Whether defendant executed the agreement of sale as allegedly
by plaintiff?
(ii) Whether plaintiff is entitled to get a registered sale deed from
defendant as prayed for?
      (iii) Whether plaintiff is entitled for mesne-profits as claimed? And
        (iv) To what relief.
        11(A). Similarly so far as O.S. No.1960 of 1988 concerned, the
plaint averments are almost similar to the above of the agreement
dated 05.11.1985 under Ex.A-1 for the premises bearing
No.19/2/224/A for Rs.2,36,000/- at Rs.200/- per square yard on
payment of Rs.50,000/- as advance and stipulated three months time
to pay balance and to obtain sale deed with further condition of on
mutual agreement to extend time and plaintiff always ready and
willing and demanding defendant and the defendant is not
cooperating and with ulterior motive avoiding to execute sale deed
which made plaintiff to issue telegraphic notice and having received
reply from defendant cause published a false notice in Siyasat,
plaintiff cause issued paper publication and as defendant is avoiding
to execute sale deed plaintiff is constrained to file the suit for
specific performance with delivery of possession and profits.
      11(B).The written statement of the defendant is while denying
plaint averments with specific contest of he never executed the sale
agreement dated 05.11.1985 in favour of the plaintiff muchless
received Rs.50,000/- advance, there is no agreement between them
and there is no payment of any amount and the alleged agreement is
a forged and created one to which the defendant not party and
question of demands or alleged extension of time to obtain sale deed
does not arise, so also alleged readiness or willingness or in asking to
receive any balance sale consideration and the sale agreement is a
creation falsely and there are exchange of notices, that plaintiff is
not entitled to any of the suit reliefs based on the forged and
fabricated sale agreements and sought for dismissal of the suit claim.
      11(C). Therefrom, the trial Court framed the self-same issues
of another suit supra.
      12) It is thereafter in the course of common trial of both suits,
plaintiff examined as P.W-1 and cause examined two witnesses
Mohd.Ali and Ansari and placed reliance on Exs.A-1 to A-32.  The
agreement of sale in O.S. No.1959 of 1988 is Ex.A-1, the agreement
of sale in O.S. No.1960 of 1988 Ex.A-21, the other agreements said to
have been obtained by plaintiff are Ex.A-2 to A-6, telegraphic notice
of plaintiff dated 28.11.1988(after three years of the sale agreements
dt.05-11-1985) is Ex.A-7, office copy of notice is Ex.A-8, postal
acknowledgment is Ex.A-11, the publication and reply publication in
Siyasat daily with English translations of November, 1988 are covered
by Ex.A-12 to A-15, plaint copy in O.S. No.1947 of 1988 is Ex.A-17
with summons Ex.A-16, plan Ex.A-18, memorandum dated 11.02.1986    
and plan attached to it are Ex.A-19 and A-20, returned covers of
Dhanraj(defendant in OS No.1960 of 1988) are Ex.A-22 to 31 and
Photostat copy of passport of plaintiff Ex.A-32.  On behalf of
defendants, DWs 1 to 3 are examined by name Sri Veerendra
Kedia(defendant in OS No.1959 of 1988), Thakur Anirudh Singh(GPA
holder of DW1) and Govindam(one of other alleged vendors as per
Ex.A2-6) and defendants placed reliance on Exs.B-1 to B-7 viz., Ex.B-
1 is notice issued to Hafizunnisa Begum dated 14.12.1988, two
passports, attested specimen signature of D.W-1 Vijender Kedia,
original sale deed dated 23.11.1982, plan and G.P.A in favour of D.W-
2 Thakur Anirudh Singh.
      13) It is from said evidence on record outcome of common trial
and from hearing common arguments, the trial Court delivered the
common judgment.  It is thus not left open to impugn by any of the
parties having consented to said common trial and disposal, but for
on merits of the matter to agitate.
      14) Among the documents supra exhibited before the trial
Court, Ex.A-17 which is the plaint copy in O.S. No.1947 of 1988 is of
the suit filed by Guljarilal Kedia(father of defendant in O.S. No.1959
of 1988) against 8 defendants including the present plaintiff Saleh as
D-8 and the other 7 defendants are Hafijunnisa Begum etc, the
origional owners of the vacant land in an extent of 7057 Sq. yds of
Ranmaspura, opposite to Zoo park, Hyderabad, with premises bearing
H.No.19-2-224 therein, with compound, that originally owned by late
husband of 1st defendant-cum-father of defendants 2 to 7 of that suit
and while so in possession and enjoyment, they entered into
agreements for sale dated 31.07.1978 for Rs.3,00,000/- and received
Rs.25,000/- and agreed to receive balance at the time of registration
of sale deed, that defendants 1 to 7 partitioned orally in the year
1980 and executed individual registered sale deeds in favour of the
persons nominated by plaintiff-Gulzarilal Kedia to the extent of 7842
Square yards by receiving a sale consideration in proportion to it of
Rs.1,75,000/- and copy of the said sale deeds were filed with that
plaint as documents 3 to 9 in saying after said sales, what remained
of 7057 Square yards to be registered in favour of the plaintiff by
defendants 1 to 7 pursuant to the agreement dated 31.07.1978 by
receiving balance sale consideration out of Rs.3,00,000/- due and
even legal notice issued on 08.07.1984 to them who agreed to
execute sale deeds saying some of the brothers and sisters are out of
India and were making alternative arrangements to obtain G.P.A from
those of outside India and it is averred therein that defendants 1 to 7
in view of the increase in the price of the lands in the vicinity are
intending to alienate the same in favour of some others, in collusion
with 8th defendant a real estate dealer in seeking specific
performance against defendants 1 to 7, for that remaining 7057
square yards for part of the premises 19-2-224 shown in the sketch
plan and to restrain defendants 1 to 8 from interfering with
possession of plaintiff over the same or from alienating or
transferring in any manner.  In the Ex.A-17 plaint in O.S. No.1947 of
1988, the plaint schedule enclosed shows South; property of Dhanaraj
(plaintiff in O.S. No.1960 of 1988) leave about the other three
boundaries one including land of Kedia Solvent Oil and the other on
West-N.H-7.  By filing Exs.A-17 and A-18 plan, there could be nothing
in favour of the plaintiff to say in the present suits for specific
performance as Ex.A-17 plaint copy refers the sale deeds in favour of
the respective two defendants of the two present matters covered by
Ex.B-5 dated 23.11.1982.  In fact, there is no dispute regarding
source of title of the respective two defendants over the respective
plaint schedule.
        15) Ex.A-1 and A-21 agreements for sale dated 05.11.1985 said
to have been executed by the two respective defendants in favour of
the plaintiff already referred supra, leave about other agreements
executed by other 5 vendors under Exs.A-2 to A-6, with time
stipulated for payment of balance consideration and to obtain sale
deeds was three months therefrom. However, there is nobody
examined by plaintiff for not even a case of demanded through any of
the PWs 2&3, much less of their any say for alleged demands if any of
any defendant of the two suits, much less any specific plea in the
pleadings of the respective two plaints supra of any time or date or
through whom if any if at all demanded and what were the exact
responses for plaintiff to sleepover for nearly three years, from the
two sale agreements dated 05.11.1985 fixing time for performance of
three months, till the telegram notice under Ex.A-7, dt.27.10.1988 as
the first notice. Said telegraphic notice Ex.A-7 issued to the
respective two defendants Vijender Kedia and Dhanaraj by plaintiff
Saleh through Advocate L.P.Sygal reads my client Saleh calls upon
you to receive the balance sale consideration and execute and
register the sale deed in favour of my client on 02.11.1988 in
pursuance of the agreement of sale dated 05.11.1985, my client
always ready and willing to pay the balance sale consideration, had
already paid to you Rs.50,000/- as advance. Your dodging is malafide.
Failing my client will sue to enforce the said agreement at your costs
and expenses.
        16) In fact, there is no whisper in said telegraphic notice as to
earlier any demands made, muchless through any elders at any point
of time and with what say for alleged dodging and if so what
prevented to issue any notice muchless elderly oral demands.  There
is nothing even as to why, even three months time stipulated for
payment of balance, any part of major consideration payable as
balance not paid even any portion out of it for expressing alleged
always readiness and willingness to perform the part of the contract
remained to be performed by plaintiff. Is it believable of plaintiff is
always ready and willing from date of agreement, but for pleading
sake to comply, even in the telegram. Undisputedly even by the
telegraphic notice dated 27.10.1988 after sale agreements dated
05.11.1985 there is no further payment but for advance payment at
the time of agreement of the sum of Rs.50,000/-.  For that also no
reason assigned.  To say the defendants were dodging malafide,
there is no basis even.  It is important to note on the next day of
Ex.A-7 telegram dated 27.10.1988, the plaintiff cause issued the
Ex.A-8 notice dated 28.10.1988 to the two defendants separately
with self-same contents mostly, through said advocate Sygal.
Practically there is no meaning once issued telegram to issue legal
notice on next day.  The Ex.A8 notice reads:
        You have entered into agreement of sale with my client for
the premises bearing No.19-2-224/E and A respectively on
05.11.1985 by executed the agreement and my client paid
Rs.50,000/- each as advance and you were under obligation to
complete the sale transaction within three months, my client
always ready and willing to pay balance but it was at your
request time was extended for further period of three months
and even thereafter you had failed to fulfill your obligations
under the agreement.  My client repeatedly demanded and
called upon you to receive balance and execute and register sale
deeds but you have been willfully and malafide avoiding on one
pretext or the other.  You are aware of the fact that sale deeds
in respect of the premises B, C, D, E and F have already been
executed in favour of nominees of my client.  My client calls
upon you to receive balance sale consideration on 02.11.1988
and execute and register sale deeds in his favour on that date
and in default will be constrained to file suit for specific
performance by holding you liable for costs and consequences.
        17) Even from this notice, there is no basis to say the original
period fixed for three months for performance, further extended to
another three months. Same version of the notice appears a false
plea, for no such whisper if true in the telegram notice of any
extension of time after original time fixed of three months. There is
no basis even to say despite what was extended of further three
months and without further extension even, why the plaintiff kept
quiet for more than 2  years even after expiry of the six months
time in issuing the telegram and regd. legal notices on 27/28.10.1988
for first time even by saying the defendants are failing to fulfill their
obligations under the agreements by willful and malafide avoiding to
the demands on one pretext or the other.  It clearly indicates even
defendants unwilling to perform, there is nothing to show plaintiffs
ever readiness and willingness and it is not for the pleadings sake in
the plaint with a sentence but it must be shown practically and in
reality of the plaintiff is always ready and willing to perform his part
of the contract right from the sale agreement date, that too even
time stipulated of three months expired long back and to say further
time extended of three months even with no basis as discussed supra,
apart from that also expired long back to say nearly 2  years before
the notices given.  The telegraphic notice and the legal notice Ex.A-7
and A-8 are sufficient to say from the tenor of those contents
discussed supra of the plaintiff is not ready and willing to perform his
part of the contract, from the beginning but for woke up by giving
notice at the fag end of the three years to the agreement.  The reply
given under Ex.A-9 to plaintiff by Vijender Kedia defendant in O.s.
No.1959 of 1988 dated 03.11.1988 speaks as reply to the telegraphic
notice dated 28.10.1988 received only on 31.10.1988, that plaintiff
misrepresented and misstated the facts and he never in fact entered
any agreement for sale pertaining to unknown property and not
stated total consideration for the unknown property to pay balance
which he is not prepared to accept and he does not know the
negotiations and alleged agreement of sale and plaintiff if created
any forged and fabricated agreement in his name, the defendant is
prepared to take necessary action and to avoid complications and
litigation, to forward copy of the alleged agreement and alleged
receipt of payment to verify.  The reply given is under Ex.A-10 saying
the reply allegations as false and made with oblique motive to
wriggle out from the execution and registration of sale deed and
notice already sent by registered post on 28.10.1988 and as desired
enclosing copy of the sale agreement with a request to perform the
obligation by execution and registration of sale deed for which
plaintiff is ready and willing always else to file suit.  Ex.A-12 = A-13
and Ex.A-14 = A-15 are the Siyasat paper public notice and reply
notice respectively of dated 07.11.1988 and the other undated the
notice of Pramod Kumar Kedia in Siyasat as purchasers beware under
Ex.A-12 = A-13 speak that he is absolute owner of the land with
rooms 19-2-224/A to D at Ramnasthpur, opposite to Zoo Park and
came to know that some self motivated persons without right of
ownership and title are trying to sell it by misrepresenting facts
stating there shall get sale deeds registered in favour of purchasers,
thereby informed the plea as should be cautious and refrain from
entering into any sort of transactions with self-styled bogus owners,
else self-responsible for consequences and the reply public notice in
Siyasat of plaintiff under Ex.A-14=A-15 speaks for premises No.19-2-
224/A to D sale agreement were executed in favour of Saleh and the
owners of the premises B to D executed registered sale deeds and as
regards A and E already legal notice issued to Vijender Kedia and
Dhanaraj to execute sale deeds in favour of Saleh and as desired in
the reply notice sale agreement copies sent and the said publication
given is with fraudulent intention to deceive the public and warns the
public not to deal with or enter any transaction with Vijender kedia
and Dhanaraj in respect of the premises A and E and else at their risk
and responsibility.
        18) It is subsequently the two suits were filed on 16.11.1988,
whereas the sale agreements were dated 05.11.1985.  As referred
supra from the sale agreements the original time stipulated for
performance is three months and the three years limitation
commences from expiry of that three months i.e., three months after
05.11.1985 = 05.02.1986 to file suit before 05.02.1989.  It is to say
the telegraphic notice/notice and filing of suit thereafter within a
gap of 20 days, are three years after the agreements practically
though it is within the limitation period under Article 54 of the Indian
Limitation Act as detailed supra, that is not the criteria to
entitlement of the relief from the scope of law discussed supra.
Ex.A-19 is the memorandum dated 11.02.1986 said to have been  
executed by Satyanarayana Gupta, Mohanlal Gupta, Banwarlal,
Vijender Kedia, Govindaram and Bajaranglal represented by Guljarilal
kedia as first part and Saleh as second part which reads parties
mutually settled the agreement in respect of the land bearing Door
No.19-2-224/B to G of Ranmasthpur and second party agreed to
purchase the extents shown in the plan in red colour and second
party already paid Rs.3,50,000/- to adjust the sale consideration at
the time of final settlement and first party shall execute sale deeds
in favour of second party or their nominee and the consideration is at
Rs.200/- per square yard to calculate for the entire red colour
portion and on half of the area covered by central road of 30 ft vide
shown in green colour and first party on receipt of sale consideration
shall execute sale deed.  Undisputely to the so called memorandum-
Ex.A19, dt.11.02.1988 neither Vijender Kedia is a signatory nor
Dhanaraj either party or signatory.  In fact as referred supra legal
notice was served only to Vijender Kedia and not to Dhanaraj.  The
telegram notice not even referred the memorandum, if true.  These
are the documents only the plaintiff placed reliance.  Among the
three witnesses examined on behalf of the plaintiff including the
plaintiff as P.W-1; his evidence in chief is defendant respectively is
owner of the premises A and E and he entered into agreement for
sale on 05.11.1985 that original of Ex.A-1 and A-21 at the rate of
Rs.200/- per square yard having paid only Rs.50,000/- advance and a
non-possessory agreement and he has to pay the balance within three
months to defendant to obtain sale deed and the other owners of the
premises among Ex.A-2 F and Z viz., he also entered into sale
agreements covered by Ex.A-2 to A-6 supra by payment of
Rs.50,000/- advance to each to obtain sale deed by payment of
balance and the other persons except Dhanaraj and Vijender Kedia
executed sale deeds in favour of nominee of plaintiff in the year 1988
and the defendant/s extended the time stipulated under the
agreement to execute sale deed in favour of plaintiffs nominee
Bajranglal, plaintiff is always ready and willing to pay balance to get
sale deed in favour of Bajranglal, defendants sought one month time
to execute registered sale deed but they did not do so.  Therefrom he
got issued telegraphic notice dated 27.10.1988 and legal notice dated
28.10.1988 to execute sale deed on 02.11.1988 by receiving balance
and as Vijender Kedia sought copy of sale deed he send the same,
they with oblique motive cause published in Siyasat and he cause
published reply and the reply notice issued also false. This chief
examination version of one month time sought for performance by
defendants after the three months stipulated time expired is neither
stated in the telegram, nor in the other legal notice-Exts.A7&8. His
further chief examination version of from Ex.A-17 and A-18 plaint
copy and plan, Yousuf Khan and others are owners of total 1500
Square yards, who entered sale agreements with Guljarilal Kedia and
sold the properties in part by execution of sale deeds and for rest
Guljarilal Kedia filed O.S. No.1947 of 1988 for specific performance
against the vendors by also impleaded the plaintiff herein as D-8 and
said Guljarilal Kedia executed Ex.A-19 memorandum on behalf of the
vendors of 7 agreements on 11.02.1986 which includes Ex.A-1
agreement. What is contained in the memorandum is discussed supra.
It is his chief examination version that Mohd.Ali and Zia-ul-huk are
the attestors to Ex.A-19 memorandum and therefrom he filed the two
suits for specific performance, that the so called fabrication and
impersonation of agreements or sale deeds are untrue.  It is further
deposed in the chief examination of P.W-1 that in April, 1985 he was
at Saudi Arabia and Ex.A-32 is the Photostat copy of his passport
showing he was away in Gulf States during the years 1985 onwards
upto 1988 and his nominees who purchased the properties from above
five persons referred above, constructed in respective plots and the
suits are relating to premises E and A. That what all the chief-
examination of P.W-1.  He did not even depose, why he did not
demand through elders or earlier not given any telegram or notice
and why he slept over for such a long time to file suit nearly at fag
end of limitation of three years from three months time after the
agreement date. It is there he blurred of his own for reasons better
known of from 1985 onwards upto 1988 he was away in Gulf States.
There was no any cross-examination version but it is the chief-
examination deposition. No doubt what he deposed is running
contrary to the Ex.A-32 passport details showing he was coming and
going and not totally stayed away from India and Hyderabad.  What
he averred is his nominees purchased from other five persons to say
under Ex.A-2 to A-6 sale agreements, sale deeds said to have been
obtained by his nominees from other five persons and what is
remained is for the two premises covered by the two suits for specific
performance.
        19) From the chief-examination of P.W-1 plaintiff supra what
he alleged is only one month time extended for performance from
the three months time stipulated in the agreements Ex.A-1 and A-21
respectively dated 05.11.1985, allegedly at request of the
defendants, even if it is believed, it is not known for he did not issue
any notice thereafter expressing readiness and willingness to perform
his part of the contract.  This version also running contrary to his
notice contents covered by Ex.A-7 telegram there, there was no
whisper of extending such time and Ex.A-8 where alleged three
months time extended at request of the defendants and not one
month as averred in chief examination. Thus, it shows the
inconsistent stands of the plaintiff also in approaching the Court with
unclean hands, even if not a false plea, to the equitable relief and
shows no truth in his plaint plea and notice plea of he is always ready
and willing to perform his part of the contract, as had there been any
little truth of either one month or three months as the case may be
after original time of three months to the agreement dated
05.11.1985 extended thereafter, there is no meaning even for not
demanding and for any demands and non-performance by not even  
issuing notice and not even by any further payment or even for
waiting till fag end of limitation in seeking for specific performance.
The fact that the other vendors if any executed sale deeds from their
willingness, no way entitles to the equitable relief herein by plaintiff
for always not ready and willing to perform his part of the contract as
required by law apart from the Court cannot ignore the factum of
increase in prices that is also there from the very plaint copy filed
under Ex.A-17 of O.S. No.1947 of 1988 as averment of there is
increase in the land values and there from the vendors therein are
trying to avoid and are joining hands with the plaintiff herein as
Ex.D-8 to create collusive documents.  In the cross-examination
plaintiff P.W-1 deposed that he did not go through the link
documents of the vendors vendor and there is no U.L.C permission
and no lay out prepared for selling any plots.  The vendors prepared
plan dividing 8400 square yards into plots and the sale transaction
against defendant Vijender Kedia is for 1000 square meters at
Rs.3,50,000/- and he knows that for above Rs.2,00,000/- value, for
every sale transaction, the owners have to obtain income tax
clearance and he has not sent draft sale deeds to owners to obtain
I.T clearance and there is a condition in the agreements that the
defendant to obtain I.T certificate before executing and also to
obtain U.L.C permission and in the notice he did not ask them to
obtain the same and he did not file any lay out plan showing division
of the plots.  All these seven agreements (including Ex.A-2 to A-6)
were executed on 05.11.1985 and in O.S. No.1947 of 1988 he was
impleaded as D-8 on his petition.  However, did not file any written
statement and he does not know as to the property stands in the
names of Guljarilal Kedia.  He did not obtain separate payment
receipts of Rs.50,000/- each from seven agreement holders including
the two defendants of the two suits for the advance amount paid.
Guljarilal Kedia who executed Ex.A-19 memorandum dated  
11.02.1988 is not the power of attorney holder for any of the vendors
under the seven agreements and there is no authority to him on
behalf of the vendors and in Ex.A-19 supra there is no mention of
Guljarilal kedia was authorized on behalf of the vendors to execute
so called memorandum.  When he was in Gulf country, sale deeds
executed by his vendors in favour of his nominees, that Mohd.Ali is
his man and not his G.P.A holder to obtain the sale deeds from five
other vendors and for the five agreements he obtained sale deeds in
favour of 26 or 27 nominees and he did not file certified copies of all
the sale deeds.  He denied the suggestion of he got executed the sale
deeds by impersonation of original vendors.  He also denied the
suggestion of the sale agreements and the so called sale deeds are
forged and fabricated.  He denied the suggestion of defendants have
not entered into any agreements of sale and did not receive any part
sale consideration.
      20). Apart from the above evidence in proof of the suit sale
agreements, the so called man of the plaintiff Mohd. Ali came to
witness box as P.W-2, who says from his chief-examination that on
05.11.1985 the two defendants herein and four other persons signed
on the respective agreements of sale and thereafter P.W-1 signed on
the agreements and the typed agreements of sale Exs.A-1 to A-6 and
21 were produced for execution by Guljarilal Kedia and himself and
Mohd.Nawab attested the same and he is the second attestor and on
Ex.A-3 agreement Guljarilal Kedia signed as vendor and all the
vendors of the agreements respectively signed in his presence and
plaintiff P.W-1 paid to each of them Rs.50,000/- in his presence and
two or three months after execution of the agreements, plaintiff
taken him to Guljarilal Kedia`s factory where Kedia executed a
memorandum(Ex.A-19) and he attested the same, so also  
Mohd.Nawab and Yusuf Nawab and he is the first attesting witness
therein and Mohd.Nawab second attesting witness.  In the cross-
examination he deposed that first time he got acquaintance with
Guljarilal Kedia in 1985 when he signed as a witness to the
documents and plaintiff purchased the property that was owned by
Guljarilal Kedia as the entire transaction took place with Kedia and
he does not know how much property he was owning and he cannot  
say the agreements respective extent of each plot and he does not
know the price fixed for each plot in the agreements executed with
Kedia and he was asked to sign as a witnesses and thereby he signed
and he never joined any transaction of plaintiff and never managed
any affairs of plaintiff while plaintiff was in Saudi Arabia, that
Mohd.Nawab also attested the documents along with him. He denied
the suggestion of on request of plaintiff he and Mohd.Nawab signed
Exs.A-1 to A-6 without knowing and Exs.A-1 to A-6, A-19 and A-21 are
by impersonation.  He deposed that he does not know signatures of
vendors on the documents.  From the evidence of PW2, there is
nothing to say any executant of the agreements signed in his
presence, but for saying he attested at request of plaintiff along with
Mohd.Nawab.  PW3 Ansari speaks that he attested the agreements of  
sale Exs.A-1 to A-6, A-21 and also A-19 and his name is Zia-ul-Hak and
also known as Mohd.Nawab. So, Mohd.Nawab is not his correct name,  
but for also so knowing and one has to sign with correct name and
also with also alleged knowing name.  He deposed that he knows the
persons who signed the documents as they executed in his presence
and the other attestor with him of the documents is PW2 whom also
he knows viz., Exs.A-1 to A-6 and A-21 are the seven sale agreements
and it is after the executants signed and plaintiff signed in his
presence he attested, and the documents were executed at the
office of Guljarilal Kedia near Zoo Park and the lands originally
belongs to his cousin brother and family, lying opposite to Zoo park
and on the date of execution of Ex.A-1 to A-6 and A-21 Kedia and
other executants and plaintiff and P.W-2 besides himself present and
he does not know his brother Yusuf was present or not at that time.
He deposed that to each of the seven agreement holders plaintiff
paid Rs.50,000/- and three or four months after the agreements,
Guljarilal Kedia executed Ex.A-19 memorandum and there also he
attested along with PW2.  His said evidence in chief is not consistent
with that of PW2, but for improvements to cover legal requirement of
attestation and further of payment of advance and execution by each
executant. It is not the deposition of both PWs.2&3 of any of them
demanded at the instance of plaintiff for specific performance or got
any acquaintance with any of the seven agreements executants, but
for knowing Guljarilal Kedia and place of execution at his office. In
the cross-examination, PW3 deposed that plaintiff transacted with
Guljarilal Kedia to purchase the lands and he does not remember
whether Yusuf Khan was original owner of the lands and he was not
present at the time of execution of sale deeds by Yusuf khan and as
to who were the vendors that sold to Guljarilal Kedia and for what
price. If the lands really originally belonged to his cousin brother and
family, could it be believed of he does not know the transactions,
that too deposed why in chief examination, in judging his credibility
of facts not even known to accommodate. The further deposition in
cross examination is that, the agreements of sale were already
prepared and his signatures were obtained and he does not remember
how much amount was paid and whether any receipt was passed as  
he did not attest any receipt and the sale transactions did not took
place in his presence and he does not know the contents of the sale
agreements and he does not know about any impersonation of
execution of registered sale deeds. So, what he deposed in chief
examination of amounts of advance paid in his presence and
execution of agreements in his presence is not correct fully. This is
the evidence on the plaintiff`s side in all in proof of the agreements
execution by respective defendants among total seven persons on
05.11.1985 under Exs.A-1 to A-6 and A-21 of which the two suit
transactions agreements are covered by the Ex.A-1 and A-21, leave
about for the other five sale deeds said to have been obtained by the
plaintiff in favour of about 25 nominees of him and none in his name.
        21). PWs 2&3 evidence as discussed supra, though not
consistent regarding the entire sale agreements transaction, one
thing is certain of their role of attestation as part of execution, to
say proved from appreciation by reading together of the entire
evidence of PWs.2&3 coupled with that of PW1 and in particular to
say it proves execution of the Exs.A-1 & A-21 sale agreements by the
two defendants, leave about the other Exs.A-2 to A-6. No doubt,
contest of the defendants respectively is said signatures on the sale
agreements are forgery. PWs 1&2, leave about PW3 also deposed  
about the respective executants signed in their presence as piece of
corroboration to PW1`s evidence of the execution, those separate
appreciation of PW2 or PW3 not credible to act as ring of truth on any
of their depositions from improvements and interestedness. From
this, if the respective two defendants did not execute and those are
created by impersonation if any and forgery of their signatures, once
PW1 plaintiff positively deposed and corroborated at least of their
signing by PWs 2&3, it can be safely said the execution is proved by
preponderance of probabilities of the civil lis as required by law to
say therefrom of burden shifts on the defendants to rebut. Dhanraj-
defendant in one of the two suits did not even come to witness box.
No doubt there was once joint trial of both suits, court has to read
evidence of DWs1-3 as defence evidence in both the suits. However
the fact remains of even signature of Dhanraj-defendant in Ex.A21 if
not of him, he should have come to the witness box and deny, which
he did not and for no explanation of any inability to come and
depose, it definitely leads adverse inference against him to draw in
support of plaintiff`s proof of execution of his sale agreement. The
evidence on record from proper appreciation of Ex.A32 with
reference to what PW1 deposed of he was in abroad during 1985 to
1988 is not fully correct but for and on by coming and going and the
evidence speaks on the sale agreement dates plaintiff was present
and the agreements were executed after payment of Rs.50,000/-
each including to the two defendants herein.
      22). It is to be seen how far the defendants rebutted above
said evidence of the plaintiffs respectively.  Among the DWs 1 to 3,
DW1 is Vijender Kedia defendant in O.S.No.1959 of 1988 deposed that
he did not enter into Ex.A-1 sale agreement with plaintiff for his 1137
Square yards at 200 per square yard and Ex.A-1 does not bear his
signature and he received no advance and he received notice under
Ex.A-8 and issued reply under Ex.A-9 and he cause published the
paper publication Ex.A-12 and the reply publication of plaintiff is
Ex.A-14 and he is in possession of the suit property and his father
Guljarilal Kedia no way concerned with the suit property of him.  He
deposed that he obtained passport Ex.B-2 in the year 1982 and the
second passport Ex.B-3 in the year 1983 and denied the signatures in
the two passports with Ex.A-1 sale agreement correlates and tallies.
He deposed that Ex.B-4 is the specimen signatures of his bank
account at S.B.H, Mahaboobgunj dated 09.07.1996.  He deposed that
the property originally belonged to S.Alikhan and after his death
succeeded by Hafijunnisa Begum and others and he does not know  
whether his father entered into agreement with those owners for
entire 15000 Square yards on 03.07.1978 and obtained sale deeds in
favour of several persons out of it for 7942 square yards.  He
answered that the property he purchased from his vendors is of his
own and he is in custody of the original sale deed and he do not know
the other persons Dhanraj-defendant of O.S. No.1960 of 1988
Satyanarayana Gupta, Mohanlal, Banwarilal, Govindaram, Bajaranglal
are whether nominees of his father.  He deposed that his father is
doing business in Khandasari Sugar with office at Kishangunj and his
G.P.A is T.A.Singh DW2 and he does not know said T.A.Singh is G.P.A  
holder for other six persons also. In fact no such GPAs filed to prove,
more particularly for Dhanraj, leave about a GPA holder cannot speak
facts with in personnel knowledge of principal. DW1 further deposed
that, he is doing business in the name Sruthi Oil Industries. He denied
the suggestion of he and other six persons including Dhanraj executed
in favour of the plaintiff, the sale agreements supra on 05.11.1985
and in the presence of his father and he does not remember to whom
plot Nos. A, B, C, D, F and G belong and that his is E.  He deposed
that his G.P.A holder T.A.Singh DW2 gave instructions in preparing
written statement and counters in the suit.  He denied the suggestion
of he knows PW3 Ansari and speaking falsely as if does not know. He
also denied the suggestion of having duly executed by them the
agreements under Ex.A-1 to A-6 and A-21 by signed respectively
including by him the Ex.A-1, he is now trying to wriggle out even
having received Rs.50,000/- advance under the Ex.A-1 on 05.11.1985
in the presence of PWs-2&3 and his father from plaintiff.  He denied
the suggestion of Ex.A-19 was executed by his father representing all
vendors of agreements and he stated he cannot identify the signature
on Ex.A-20 plan is of his father and he deposed the signature on Ex.A-
18 plan annexed to Ex.A-18 plan is not of his father.  He denied the
suggestion of he promised the plaintiff to execute sale deed pursuant
to Ex.A-1 agreement after plaintiff obtaining sale deeds from other
agreement holders among the seven and even he and his father away
of five agreement holders executed sale deeds in September, 1988
and he assured to execute sale deeds in favour of the plaintiff within
one month thereafter for demands of plaintiff avoiding he deposed
that after received suit summons he filed injunction suit in O.S.
No.4382 of 1988 and denied the suggestion of he is falsely deposing of
Ex.A-1 sale agreement signature is not of him or after filing of the
suit he is admitting to sell away the property. Said suggestion of he
promised the plaintiff to execute sale deed pursuant to Ex.A-1
agreement after plaintiff obtaining sale deeds from other agreement
holders among the seven, is a new version not finding place in
telegram or notice or publication in paper or plaint or PW1 chief
examination to give any credence to the suggestion.  DW2-T.A. Singh,
G.P.A holder of DW1-Vijender Kedia, deposed that defendant is
owning 1180 square yards with door No.19-2-224/A which he
purchased from Fatima and others in the year 1982 under registered
sale deeds and he is looking after the property with shed therein. He
denied the suggestion of plaintiff entered into sale agreement with
defendant at the rate of Rs.200/- square yard, having received
Rs.50,000/- advance and executed the sale agreement that it
contains his signature.  He deposed that Ex.B-5 is the original sale
deed executed by Fatima and others in favour of the defendant and
the plan of the site is Ex.B-6 and Ex.B-7 is the G.P.A executed by
defendant-DW1 in his favour.  In the cross examination DW2 deposed
that he never was the G.P.A of Guljarilal Kedia-the father of
defendant but for of Vijender Kedia-DW1.  He denied the suggestion
of Dhanraj is one of the employees of Guljarilal Kedia.  He denied the
suggestion of DW1 executed the sale agreement(Ex.A1) for sub-plot
A at Rs.200/- per square yards for Rs.2,36,000/- and received
Rs.50,000/- advance from plaintiff and other vendors also executed
similarly agreements under Ex.A-2 to A-6 for respective sub-plots B to
F and I and the five agreement holders executed sale deeds but for
the two defendants.  He deposed that the plot number shown in
Ex.A-18 plan is correct.  He denied the suggestion of the signature of
Ex.A-1 agreement is of the defendant or plaintiff after 23.09.1988
demanded the defendant to receive balance and execute sale deed.
He deposed that plaintiff issued telegraphic notice and also issued
notice to the defendant for which defendant got issued reply and he
also knows about the publication by defendant in Siyasat Daily.  He
deposed that the plot No.A is that of the defendant.  He deposed
that he cause prepared written statement of the defendant and
signed the same as G.P.A holder saying the sale agreement is a
forged one and denied the suggestion of it is genuine.  He deposed
that PW3 did not sign in his presence as attestor on the agreement
and he does not know PW2. It is a meaningless suggestion for not a
case of his presence on 05-11-1985 and execution of any agreements
by anybody. DW2`s evidence is of no help to defendants, but for
plaintiff, to say DW1 did not even cause prepare his written
statement by his instructions and GPA holder could not give for its
preparing without knowing personally of the Ex.A1 transaction.  DW3-
Govindaram is one of the agreement holders among the seven
agreements according to the plaintiff.  He deposed that he is the
owner of plot F, 1168 Square yards and he did not sign Ex.A-6
agreement in favour of the plaintiff and did not enter the agreement
and he does not know Guljarilal Kedia and he was partner of R.G.
Khandasari and the other partner was one Mahesh Kumar and he  
denied the suggestion of he is nominee of Guljarilal Kedia in the
purchase of the premises F under sale deed dated 28.11.1992.  He
deposed that at the request of DW2 he came to Court to give
evidence in the suit and the signatures shown in Ex.A-6 is not that of
him and denied the suggestion contra.  This is what all the evidence
of the defendants on record.
      23). Even coming to DW1-Kedia-defendant in OS No.1959 of
1988 deposed by coming to witness box of denying his signature,
there is other material like Bank Account and pass port etc.,
exhibited with his signatures for the Court to compare in further
substantiating the evidence of PWS1-3 in proof of the sale
agreements. What the defendants contesting of PW1 chief
examination last lines of he was in Gulf countries during the years
1985 to 1988 and it belies the sale agreements as if he personally
entered by presence concerned, it is not sufficient from that stray
sentence to belie entire evidence on record and case of plaintiff, but
for appreciation with reference to that also from entire evidence
with reference to pleadings also from surrounding circumstances to
arrive the truth from the voyage of trial.  If it is so as required by
law, said contention from that stray sentence is not correct, even
from bare perusal of the entries of the passport of PW1-Plaintiff
under Ex.A-32 and evidence of PW1 corroborated by that of PW3 in
particular and also of PW2 showing presence of PW1-plaintiff at the
time of the sale agreements obtained on 05.11.1985, the burden thus
once shifts on the defendants to rebut said reliable evidence as
proved, as the defendants are not the laymen, muchless claimed as
so, being well versed and the contest is forgery, once the signatures
and due execution proved, suffice to say from the settled
propositions of law that contents follow from proof of execution, that
too to rebut, the defendants not even ask even to send for expert
opinion if sure of not signed despite evidence of plaintiff proved
signed and executed, for DW2 is only GPA of DW1, who cannot speak  
any facts personally with in knowledge of DW1 and nothing more
from him and even of DW3-claimed not signed as one of the
executants of sale agreement among the Exts.A2-6, viz.Ex.A4, even
sale deed already obtained if not executed as party to the document,
he could have filed suit for cancelation and atleast given notice
repudiating by conduct to take further legal recourse as any ordinary
prudent person supposed to do without silence. Mere denial of
signature of DW1 by coming to witness box on Ex.A1 is not sufficient
to rebut from proved evidence of the Ex.A1 as discussed supra, to
rebut. A comparison of the Ex.A1 with other undisputed signatures on
record of DW1 including deposition though of large time gap in
natural stokes and pattern correlates to substantiate evidence of
Plaintiff discussed supra.
        24). Even there is nothing even from PWs 2&3 muchless through
any witness of plaintiff about any demand for specific performance
pursuant to Ex.A-1 and A-21 agreements for proof of readiness and
willingness, even as discussed supra, the plaintiff`s side evidence
proves execution of the sale agreements by defendants respectively.
The defendant Dhanraj in O.S. No.1960 of 1988 did not come to
witness box even to deny his signature of sale agreement despite
above evidence though defendant in O.S. No.1959 of 1988 DW1-
Vijender Kedia denied the signature, a comparison of his signature
with Exs.B-2, B-3 and B-4 and with his deposition as referred supra,
correlates to conclude coupled with evidence of PWs. 1 to 3 as that
of him which is within the power of the Court under Section 73 of the
Indian Evidence Act.  In fact, the defendant`s evidence supra, from
DW1`s mere denial of signature on Ex.A1 no way rebuts the proved
evidence of plaintiff, the defendants could have chosen to rebut the
above evidence of plaintiff by cause sending the agreements of sale
to expert if not executed for comparison and opinion with reasons to
say anything further with reference to it. It is in this context
important to say even the DW1-Vijender Kedia, in his reply notice
asked to send the sale agreements and even sale agreements sent by
plaintiff, he did not issue any rejoinder denying his signature on the
sale agreement if not executed by him and though in the reply
threatened to give police report if not that of him and asked to send
copy of agreement to verify, admittedly he did not give any police
report if at all the agreement is a forged one as expressed by his
intention in the reply.  These are also the circumstances supporting
the case of the plaintiff of the suit sale agreements were to conclude
as proved duly executed by the defendant respectively in favour of
the plaintiff for the respective lands having received Rs.50,000/- as
advance.
      25). However, the fact remains from the evidence on record
for the urbanized property even from Ex.A-17 plaint copy placed
reliance by plaintiff speaks of the land values increased exorbitantly
from said own evidence of plaintiff, there is nothing to prove what is
required by law if true to support the plea of always readiness and
willingness on the part of the plaintiff in seeking for specific
performance of the contract to get the equitable relief of specific
performance as out of the sale consideration of more than
Rs.2,27,400/ to Rs.2,36,000/- or so at Rs.200/- per square yard
against the two defendants for the respective suit schedule extents,
what plaintiff proved paid is Rs.50,000/- each and nothing more after
the agreements dt.05-11-1985 as even by date of the suits on 16-11-
1988, despite the suit sale agreements stipulated three months time
only for performance by plaintiff to pay entire balance and to obtain
sale deeds and not even send any written notice , not even
demanded through anybody orally, to say personnel demands there is
no basis as when and with what reply and even the evidence is quite
inconsistent of what is discussed  supra of sought one month time or
extended three more months time, for nothing endorsed if true on
the agreements with him to believe and for further total inaction
despite knowing of not performing, for there is no further extension
in writing and there is no any exchange of notices and there is no any
evidence of witness including P.Ws 2 and 3 of any demanding through
them for specific performance and from also say of to plaintiff`s
knowledge allegedly dodging by defendants from the beginning, what
all whispered for the first time nearly three years after the
agreements date in the telegraphic and legal notice dated
27/28.10.1988 of the agreements dated 05.11.1985 as if defendants
are dodging and with inconsistent versions as if three months time
was again extended either for one month or three months, if true
when thereafter even there is nothing to prevent to give notice or
file suit without waiting for fag-end period of limitation period,
suffice is say, plaintiff was not really and practically ready and
willing but for pleading sake to get over plaint rejection propounded
in notice And plaint. It is how apart from no truth even for the
silence of the plaintiff without even expressing his readiness and
willingness to perform his part of the contract to seek specific
performance to obtain sale deed by payment of major portion of
consideration remained unpaid and from hardship to the defendant/s
if ordered performance from showing from plaintiff`s own evidence
from contents of Ex.A17 of value of lands later abnormally increased,
plaintiff not entitled to the equitable relief of specific performance
and for not even pleaded any alternative relief for refund or damages
or compensation, not entitled even to order refund though under
general law of contract Act from Sections 65 to 70 it could be , from
the specific legal bar under the special law of specific relief Act. The
trial Court thereby went wrong totally in ignoring these vital legal
and factual aspects which go to the root of the matter in decreeing
the suit for specific performance instead of dismissing for specific
performance. Thus, the trial Court`s decrees in both suits covered by
the common judgement for both suits are liable to be setaside by
allowing the appeals.
        26). Accordingly and in the result, both the appeals are allowed
by setting aside the trial Courts common judgement and the
respective decrees in both the suits granting specific performance of
the contract for sale with possession respectively for the plaintiff is
not entitled to the relief of specific performance or for refund of
advance amount even for no prayer from the legal bar to grant
otherwise even with no prayer and further the question of any
entitlement to profits does not arise for such a claim by non-
possessory agreement holder against true owner vendor/s in lawful
possession. There is no order as to costs in both the appeals.
      27) Miscellaneous petitions, if any pending in these two appeals
shall stand closed.
_______________________  
Dr. B. SIVA SANKARA RAO, J  
Date:03-02-2016