THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.939 AND 990 OF 2010 24.09.2010 Between: Achanta Rama Rao … Appellant AND Nimmagadda Veera Venkata Satyanarayana And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL Nos.939 AND 990 OF 2010 COMMON JUDGMENT: This common Judgment shall dispose of both the second appeals which arise out of a common Judgment of the first appellate Court. In this Judgment, the parties are referred to as they are arrayed in the original suit. The appellant is fifth defendant and the first respondent in both the cases is the plaintiff. Three brothers of Nimmagadda family, namely, Nimmagadda Siva Rama Krishna, Nimmagadda Veera Venkata Satyanarayana and Nimmagadda Veerabhadra Rao filed three suits on the file of the Court of the Senior Civil Judge, Kovvur for specific performance of agreement of sale, dated 26.08.1985 in respect of one- third share each in the land admeasuring Acs.27.00 in survey No.1/2A of Komatikunta village of Gopalapuram Mandal in West Godavari District. The vendor Makireddy Anjaneyareddy is no more. The suit was filed against his wife, only son and two daughters for specific performance and permanent injunction. It may be noticed that fifth defendant is brother-in- law of Nimmagadda brothers. The three suits were decreed with costs. The fifth defendant preferred first appeals on the file of the Court of the Principal District Judge, West Godavari. The appeal suit filed against the decree in suit filed by Siva Rama Krishna was allowed but two other appeals by fifth defendant were dismissed. The details of these suits and appeals are shown in the following table. Sl. No. O.S.No. A.S.No. S.A.No. Name of the plaintiff Result of the suit 1 12 of 1998 98 of 2008 --- Nimmagadda S i v a Rama Krishna Decreed 2 13 of 1998 99 of 2008 939 of 2010 Nimmagadda V e e r a Venkata Satyanarayana Decreed 3 14 of 1998 100 of 2008 990 of 2010 Nimmagadda Veerabhadra Rao Decreed The case of the plaintiffs is that Anjaneyareddy executed three agreements of sale in favour of plaintiffs for one-third share each for a sale consideration of Rs.81,000/-. An amount of Rs.72,000/- in cash and another sum of Rs.9,000/- by way of discharge of bank debts was paid on the date of contract. The suit schedule property was delivered to the plaintiffs. It was agreed between the parties that the vendor shall execute registered sale deed within fifteen years i.e., by the year 2000. The land was delivered possession. The plaintiffs developed the land by taking up jungle clearance and brought to cultivation. Subsequently, the defendants alienated the property to fifth defendant, under three agreements of sale, dated 12.08.1993, 28.08.1993 and 27.10.1993. The said subsequent agreements of sale are collusive. After fifth defendant made a demand to defendants 1 to 4 for execution of registered sale deed, the plaintiffs got issued legal notice on 15.04.1994 demanding execution of sale deed. The successors of vendor denied the contract and made all false allegations. The fifth defendant set up lease prior to suit agreements. As the plaintiffs performed their part of the contract and defendants refused to perform their part of the contract, the suit was filed impleading subsequent vendee. Defendants 1 to 4 (hereafter called, vendors) filed common written statement and fifth defendant filed a separate written statement. They alleged that Anjaneyareddy never executed agreement of sale, that the suit agreement is forged and fabricated brought into existence by the plaintiffs, that there was no legal necessity or the benefit for the family to sell away the property, and that the schedule property was leased out to fifth defendant for lease amount of Rs.10,000/- per annum and one Nimmagadda Rama Murthy in 1977 orally for 99 years, which was reduced to a lease deed as record of past transaction on 03.11.1977, that after Rama Murthy relinquished leasehold rights, fifth defendant became tenant for the entire property where he raised cashew-nut garden and that in 1993, second defendant sold the suit schedule property under three registered sale deeds, whereafter fifth defendant is in possession of the property. In his written statement, fifth defendant while denying the plaintiffs’ case supported defendants 1 to 4. The trial Court clubbed all the suits and evidence was recorded in O.S.No.12 of 1998. Plaintiffs examined seven witnesses and marked twenty five (25) documents. The defendants examined D.Ws.1 to 6 and marked Exs.B.1 to B.23. The three suit agreements, dated 26.08.1985 executed by Anjaneyareddy in favour of plaintiffs were marked as Exs.A.1, A.15 and A.24. The sale deeds set up by fifth defendant were marked as Ex.B.3 (12.08.1993), B.4 (28.08.1993) and B.5 (27.10.1993). The counsel for appellant submitted that the plaintiff in O.S.No.12 of 1998 while deposing as P.W.1 admitted that they had no wherewithal and they were not in a position to pay the entire sale consideration, and therefore, it was agreed to obtain registered sale deed by the year 2000. He would urge that when first appellate Court denied specific relief to the plaintiff in O.S.No.12 of 1998, the relief ought to have been denied to the plaintiffs in two other suits. Nextly, he contends that in Exs.A.1, A.15 and A.24, period of fifteen years was granted to the vendor Anjaneyareddy for execution of registered sale deed and this itself would improbablise the execution of suit agreements, especially when as admitted by P.W.1 there was no wherewithal for the plaintiffs to pay the property and as deposed by D.W.1, the family of vendor had no necessity to sell the suit schedule property. Nextly, it is contended by counsel that the reliance placed on the evidence of P.W.5 by the Courts below is erroneous as P.W.5 is untrustworthy witness. This Court has perused the common Judgment of the trial Court and that of the appellate Court. Both the Courts have considered the entire evidence on record – both oral and documentary; and insofar as O.S.Nos.13 and 14 of 1998 are concerned, had drawn inferences applying sound principles of appreciation of evidence. In the second appeal, unless there is a gross perversity, the evidence adduced during the trial cannot be re-appreciated. The fifth defendant has not shown any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908. Insofar as the improbabilities pointed out by the counsel are concerned, this Court is not impressed. P.W.5 is not related to plaintiffs. He was the attestor who witnesses the execution of Exs.A.1, A.15 and A.24, suit agreements. He had also deposed in earlier suit about the agreement. Further, indisputably fifth defendant as D.W.2 admitted in the written statement, Ex.A.7 filed in the earlier suit being O.S.No.56 of 1987 for recovery of money that the defendants executed suit agreements in favour of the plaintiffs. Therefore, the grounds urged are without any substance. Insofar the evidence of P.W.1 is concerned, suit agreements executed by Anjaneyareddy are separate and distinct. Under the suit agreements, the three brothers of Nimmagadda family purchased one-third share each in the suit schedule property. P.W.1 was statedly minor at the time of execution of Ex.A.1 by Anjaneyareddy and therefore, the first appellate Court came to the conclusion that P.W.1 could not have paid sale consideration and that an agreement for purchase of immovable property without sale consideration cannot be enforced being void ab initio. That is not the case in respect of plaintiffs in O.S.Nos.13 and 14 of 1998. This Court, however, hastens to add that this is an independent issue which has already been gone into in O.S.No.12 of 1998 as well as the appeal arising therefrom with which this Court is not concerned. Relying on a stray sentence in the deposition of P.W.1, the plaintiffs cannot be denied the relief of specific enforcement of suit agreements. Indeed, D.W.2 himself admitted that defendants executed agreements and the son of late Anjaneyareddy as D.W.1 admitted that when sale deeds Exs.B.3 B.4 and B.5 were executed by defendants 1 to 4 in favour of fifth defendant, no consideration was paid. This itself would falsify the case of fifth defendant and this gives rise to a suspicion that Exs.B.3, B.4 and B.5 were created to defeat the rights of the plaintiffs. There is yet another strong reason to disbelieve the case of fifth defendant. It is quite ununderstandable that three brothers of Nimmagadda family entering into three agreements with Anjaneyareddy in respect of one-third portion each of the suit schedule property. When fifth defendant himself purchased the land, it is improbable that they were valid and binding on the plaintiffs. When one person buys the land, it is rather unusual that there should be three sale deeds for the same property sold by the same vendors. The submission that grant of fifteen years time for execution of sale deed by the vendor improbablises the suit agreement is devoid of any merit. When the purchaser and the seller of the sale deed agree for payment of entire sale consideration and the possession is delivered to the vendees, it is between them as to when a sale deed should be executed. From this, fifth defendant cannot derive any sustenance. The second appeals are devoid of any merit and are accordingly dismissed. __________________ (V.V.S.RAO, J) 24.09.2010 Pln