THE HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.738 OF 2010 ORDER: This second appeal is filed by the appellant/defendant against the judgment and decree dated 13.08.2009 passed in A.S.No.288 of 2006 by the IV Additional District Judge, East Godavari District at Kakinada allowing the appeal by setting aside the judgment and decree dated 19.10.2006 passed by the Senior Civil Judge, East Godavari District in O.S.No.33 of 2004 filed for recovery of Rs.2,54,000/- together with interest. The plaintiff, namely, D. Seetaramachandra Murthy instituted the above suit for recovery of advance amount paid by him in the month of September, 2002 pursuant to the agreement of sale agreeing to purchase the plaint schedule property to an extent of Ac.0.14 cents situated in Pithapuram. According to the plaintiff, the defendant made him to believe that he is the exclusive owner of the plaint schedule property. As the plaintiff was eager to construct a house, entered into an agreement to purchase the said property and the defendant promised to produce all the documents to satisfy his exclusive title over the schedule property. Though the market value of the site, at that time, was around Rs.40,000/- per cent, the defendant misrepresented that the value of the site was Rs.70,000/- per cent. Believing his version, the plaintiff paid an advance amount of Rs.2,00,000/- on 9.09.2002 and demanded the defendant to satisfy his title to execute a sale agreement or sale deed, for which the defendant acknowledged the receipt of amount under Ex.A.3, but he did not produce the relevant and required documents except a copy of partition deed dated 26.09.1990, which does not show the exclusive right of the defendant over the plaint schedule property. In spite of several demands made by the plaintiff to produce the title deeds, the defendant failed to do so. Hence, the plaintiff got issued a legal notice dated 12.02.2003 demanding the defendant to return the advance amount paid by him, to which a reply has been got issued by the defendant on 23.03.2003 under Ex.A.2 with untenable reasons. As per the partition deed dated 26.09.1990, the defendant and his brother jointly got a share which includes the plaint schedule property. There is no proof that the defendant and his brother partitioned their properties and the defendant got absolute title over the suit schedule property. As per the partition deed, the property was acquired by the defendant’s father and as he died intestate all his children entitled to share, and as such, the partition deed is defective. In those circumstances the plaintiff decided to drop to purchase the property and hence he filed the above suit for refund of advance amount. The defendant filed written statement traversing the material allegations contending that the extent of the plaint schedule property is not correct. As per the partition deed the total extent of schedule property is Ac.0.14 ½ cents. In addition to that some other site adjacent to the schedule property was added. The plaintiff was fully aware about the extent of the site as Ac.0.15 cents. He had no objection to execute a sale deed after getting the site surveyed and after receiving the balance of sale consideration. In the reply notice dated 23.03.2003 issued by him, he has informed the plaintiff that he has no objection to deposit the amount equivalent to the share of his brother’s son Sankara Rao, who is a minor and the defendant’s sisters are also willing to sign on the sale deed. He is ready to clear off the debts due to the Municipality and that he is always ready and willing to perform his part of contract. He further requested the plaintiff to obtain registered sale deed within 15 days from the date of receipt of the notice, otherwise the advance amount paid by him would be forfeited. On the above pleadings, the trial Court framed the following issues for trial. 1. Whether the plaintiff is entitled to refund of advance amount? 2. Whether the plaintiff is entitled to interest as claimed? 3. To what relief? During the pendency of the suit, the plaintiff died and his legal representatives were brought on record as Plantiffs 2 to 4 as per the orders in I.A.No.563 of 200 dated 8.09.2005. To prove their respective contentions, on behalf of the plaintiffs, the fourth plaintiff himself was examined as PW.1 and he also examined three more witnesses as PWs.2 to 4 and got marked Exs.A.1 to A.6. On behalf of the defendant, the defendant himself was examined as DW.1 and one more witness as DW.2, but no documents were marked. The trial Court, on appreciation of the oral and documentary evidence adduced by both the parties, held that when the contract between the parties is subsisting and it is not repudiated, the plaintiffs should have filed suit for specific performance of the contract. The plaintiffs cannot unilaterally rescind the contract. They should have asked for recession of contract and for the refund of the amount. But having not done so, the suit as framed is not correct and accordingly answered the issues against the plaintiffs and dismissed the suit. On appeal being preferred, the lower appellate Court on re- appreciation of the entire evidence, allowed the appeal holding that when the plaint allegations show that as on the date of payment of Rs.2,00,000/- towards advance, the market rate of schedule site was Rs.40,000/- per cent whereas the defendant made to believe the first plaintiff that the market rate was Rs.70,000/- per cent by then. Under Ex.A.1 notice, the first plaintiff specifically mentioned that the defendant failed to produce the link document to the partition deed dated 26.09.1990; that one of the sharers of the suit schedule property is a minor and the amount of minor has to be deposited in a Bank, and that the daughters of late Viswanadha Sarma have to be signed on the sale deed. The defendant is not the exclusive owner of the property and he has not furnished the link document i.e., Will dated 6.05.1910, and he is not willing to produce the original of Will. As there are other properties referred to in the document he offered to give Xerox copy of the Will and partition deed duly attested. The defendant has not explained as to why he did not deliver copy of the Will along with copy of the partition deed to the first plaintiff to satisfy him about his title over the property. He did not disclose that there are other title holders to the suit schedule property, namely, his sisters, who are daughters of Viswanadha Sarma and a minor son, but stated that they have prepared to join in the schedule, and authorized him to enter into the sale transaction and receive part of the sale consideration, and by misrepresenting the plaintiff the defendant received the advance amount. Therefore, it is always open for the plaintiffs to rescind the contract and file a suit for recovery of amount. The learned counsel for the appellant contends that the defendant can always forfeit the earnest amount as held by the Supreme Court in Shree Hanuman Cotton Mills and another v. Tata Air Craft Limited[1]. Once a reply notice is issued by the defendant stating that he along with other sharers are agreeable to execute the sale deed as per the terms agreed thereon on payment of balance of sale consideration with subsequent interest within 15 days from the date of receipt of the notice, otherwise they will forfeit the earnest amount, to compensate the loss incurred, the defendants are entitled to forfeit the same. The facts in the judgment on which reliance is placed, are not applicable to the present case for the reason that when buyer makes default in payment of amount according to the contract, the seller can forfeit the earnest money paid by the buyer according to the contract. It is not the case of the appellant that there was a written contract between the parties where the parties have agreed that in the event of plaintiff failing to pay the balance of sale consideration and obtain a sale deed, the advance amount will be forfeited. In the reply notice sent by the defendant under Ex.A.2, nothing is mentioned about the shares of his sisters, but he pleaded that he has no objection to receive the balance of sale consideration for the land in existence after a detailed survey and satisfaction of the plaintiff, and he is agreeing to deposit 1/10 share of purchase money in any nationalized Bank in the name of minor, and his sisters are always ready and willing to execute sale deed in favour of the plaintiffs. But the said fact has not been disclosed by the defendant at the time of entering into the agreement and receiving the advance amount. When the defendant suppressed the factum of his exclusive ownership, the plea that the minor and the sisters, who will have share in the property, are willing to execute the sale deed, is of no assistance. In view of the same, the trial Court rightly allowed the appeal decreeing the suit. It is well settled that no prudent person will purchase the property with future litigation. When the defendant himself misrepresented the first plaintiff and received the sale consideration, it is always open for the plaintiffs to rescind the contract and seek refund of the advance amount. Therefore, no illegality or infirmity is discernible in appreciation of evidence, and the findings recorded by the lower appellate Court decreeing the suit by allowing the appeal itself will not give raise to any question of law much less substantial question of law to admit the second appeal. Accordingly, the second appeal is dismissed at the admission stage. There shall be no order as to costs. ____________________ (A. GOPAL REDDY, J.) 6th August, 2010 Js. [1] AIR 1970 SC 1986