THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1156 OF 2009 Date: 31-12-2009 Between Kuakula Savitri …..Appellant Kurakula Veera Raghavulu and five others …..Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No. 1156 OF 2009 JUDGMENT: The unsuccessful plaintiff in the Courts below filed this second appeal against the judgment and decree of the learned Senior Civil Judge, Pithapuram dated 07-08-2009 dismissing A.S No. 17 of 2006 and confirming the judgment and decree dated 26-07-2006 passed by the learned Junior Civil Judge, Pithapuram dismissing O.S No. 157 of 1997 filed for specific performance of agreement of sale dated 24-07-1981 and alternative relief for the amount of Rs.20,000/- and also for consequential injunction. The plaintiff is the wife of the 2nd defendant and her father-in- law late Kurakula Venkatrao was the owner of the plaint schedule property which is self-acquired property and Ramayamma was the wife of Venkatrao. Defendant Nos. 1 to 3 are the sons of Venkatrao and Ramayamma. Defendant Nos.4 to 6 are the daughters of Venkatrao. He entered into an agreement of sale with her daughter-in- law, the plaintiff on 24-07-1981 agreeing to sell Ac.1.20 cents of land in Survey No. 83/3 of Viravada Village and on the said date, she paid a sum of Rs.20,000/- and the balance of Rs.4,000/- to be paid at the time of execution of the sale deed. Though the plaintiff demanded for execution of the sale deed, Venkatrao postponed the same and after waiting for a long time, she issued a notice on 29-12-1996 and on receipt of the said notice, Venkatrao gave a reply on 27-01-1997 requesting three months time for execution of the sale deed as he was suffering from ill health. Since Venkatrao died on 21-02-1997, she filed the suit. The 1st defendant filed a written statement supporting the claim of the plaintiff. Defendant Nos.2 and 5 filed memo adopting the written statement of the 1st defendant. Defendant Nos.3 and 4 filed written statement denying the plaint allegations stating that the defendants are the children of Venkatrao. The 2nd defendant is not cultivating the land under lease. It is their case that no possession was delivered to the plaintiff and no maktha is paid to her. Venkatrao has no necessity to execute the sale deed in favour of her daughter-in-law and if it is a fact, the agreement itself, if any, is time barred and it cannot be enforced. She has no capacity to invest the amount. Registered notice and the reply notice are collusive and they are not aware of the contents of the said documents. It is their case that Venkatrao during his life time on 30-12-1996 executed a Will in which there is no mention about the agreement of sale. An extent of 20 cents in Makamdiba is in exclusive possession and enjoyment of the 3rd defendant. The said fact was mentioned in the last Will. One acre of land was in possession and enjoyment of the 6th defendant which was inherited to her through her mother Ramayamma and one acre of land was settled in the name of Rayudu Veera Prabha. The 2nd defendant is the adopted son of Lovaraju and he has nothing to do with the property or the land of Venkatrao. The 6th defendant filed a written statement stating that the agreement of sale is a fabricated one and that the said agreement is not signed by G. Suryarao as claimed by the plaintiff. Venkatrao who acquired the property during his lifetime executed gift deed in favour of his wife Ramayamma and she in turn executed a gift deed in her favour and delivered possession. Since then, she is in possession and enjoyment of the suit property. On the respective pleadings, necessary issues were settled for trial. On behalf of the plaintiff, PWs 1 and 2 were examined and Exs.A-1 to A-6 were marked. On behalf of defendant Nos.1, 2 and 5 no evidence is adduced. The 3rd defendant was examined as DW 1 and two more witnesses were examined as DWs 2 and 3 on his behalf. The 6th defendant examined herself as DW 4. Exs.B-1 to B-4 were marked on behalf of the defendants. The trial Court after considering the evidence adduced by the parties held on issue Nos.1 and 2 that Ex.A-1 is not true and valid and not binding on the defendants and it is barred by limitation. It was also held that PW 1 and the 2nd defendant in collusion created Ex.A-1 which is null and void. The trial Court accordingly dismissed the suit. On appeal being filed, the lower appellate Court confirmed the findings of fact arrived at by the trial Court. In a suit filed for specific performance, the burden lies upon the plaintiff to prove the execution of the document and readiness and willingness to perform the contract through out. The plaintiff examined herself as PW 1 and also examined one more witness as PW 2. In the cross examination, she admitted that no cash on hand was available with her to pay Rs.20,000/- as advance or Rs.4,000/- balance of sale consideration when she demanded her father-in-law to execute the sale deed. But, she stated that her father advanced a sum of Rs.20,000/- which was paid to her father-in-law and subsequent to that, she never requested her father to pay the further sum of Rs.4,000/-, which clearly shows that she has no capacity to pay the amount. There is also no whisper that she was ready and willing to perform her part of contract. When the 6th defendant contended that the land in question is in her possession and enjoyment as per the gift deed executed by her mother Ramayamma, the plaintiff has not chosen to file any rejoinder. She admitted during her cross examination that possession was not given to her on the date of agreement, but it was given to her two or three days subsequent to the agreement. Her evidence was that the property was in possession and enjoyment of Venkatrao by the date of agreement and after that, she has taken possession and thereafter, her husband was in possession of the property as her tenant, which fact has not been pleaded in the plaint. The cross examination by defendant Nos.1, 2 and 5 reveals that by the time of purchase of the schedule property, Venkatrao was cultivating the land, but it has been deposed by her that her husband was cultivating the land as tenant under Venkatrao. PW 2 who was examined to prove the agreement clearly stated that he never witnessed Venkatrao executing the said agreement in favour of the plaintiff nor passing of consideration to Venkatrao by the plaintiff. Since PW 2 in whose presence the agreement is alleged to have been executed has not supported the plaintiff, the contradictory evidence of the plaintiff has not been rightly taken into consideration by the trial Court. The concurrent findings of fact reached by the Courts below on appreciation of evidence do not give rise to any substantial question of law. The second appeal is accordingly dismissed. A. GOPAL REDDY, J 31-12-2009 ks