* HON’BLE SRI JUSTICE B.PRAKASH RAO AND *HON’BLE SRI JUSTICE R.KANTHA RAO + A.S.No. 986 of 2001, A.S.No.3664 of 2004 AND C.M.A.No. 772 of 2006 % Date: 14.03.2011 A.S.No.986 of 2001 BETWEEN: # Kundarapu Kondadu …Appellant $ Pyla Venkataswamy @ Babu and others .. Respondents A.S.No.3664 of 2004 BETWEEN: # Smt. Kundarapu Venkata Lakshmi …Appellant $ Pyla Venkataswamy @ Babu and others .. Respondents C.M.A.772 of 2006 BETWEEN: # Pyla Venkataswamy @ Babu …Appellant $ Petakamsetty Ramaswamy Naidu and others .. Respondents ! Counsel for Appellants: Sri VLN GK Murthy Sri Subba Reddy S., Sri EVVS Ravi Kumar and Ms.G.Ramalakshmi Sri P.Sri Raghuram, Sri P.Srinivasa Rao, Sri S.Sateesh and Sri Hari Babu ^ Counsel for respondents: Sri K.Raghavacharyulu, Sri M.Chandrasekhara Rao < GIST: >HEAD NOTE: ? Cases referred: 1 AIR 1958 SC 394 2 (1983) 1 SCC 18 3 1996 (5) SCC page 539 4 AIR 2004 SC 173 HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE R.KANTHA RAO A.S.No. 986 of 2001, A.S.No.3664 of 2004 AND C.M.A.No. 772 of 2006 Date: 14.03.2011 A.S.No.986 of 2001 BETWEEN: Kundarapu Kondadu …Appellant Pyla Venkataswamy @ Babu and others .. Respondents A.S.No.3664 of 2004 BETWEEN: Smt. Kundarapu Venkata Lakshmi …Appellant Pyla Venkataswamy @ Babu and others .. Respondents C.M.A.772 of 2006 BETWEEN: Pyla Venkataswamy @ Babu …Appellant Petakamsetty Ramaswamy Naidu and others .. Respondents HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE R.KANTHA RAO A.S.No. 986 of 2001, A.S.No.3664 of 2004 AND C.M.A.No. 772 of 2006 COMMON JUDGMENT: ( Per RKR,J ) A.S.No.986 of 2001 arises out of decree and judgment dated 12.02.2001 passed by the Senior Civil Judge, Yellamanchili in O.S.No.132 of 1995. The first defendant who lost the suit filed the appeal. A.S.No.3664 of 2004 also arises out of the decree and judgment dated 12.02.2001 passed by the Senior Civil Judge, Yellamanchili in O.S.No.132 of 1995, filed by the second defendant assailing the decree and judgment in the said suit. C.M.A.No.772 of 2006 is filed by the first respondent against the decree and order passed in I.A.No.1072 of 2004 in O.S.No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam. The appellant in the C.M.A.No.772 of 2006 is no other than the plaintiff in O.S.No.132 of 1995. We have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. Since the subject matter involved, the parties to the lis and the persons claiming through them in all the matters being the same, the above mentioned two appeals and the C.M.A. are disposed of by the following common judgment. For convenience sake, we would like to refer the parties as plaintiff and defendants in O.S.No.132 of 1995 and the remaining parties by their names. The facts essential for disposing of the appeals and the C.M.A. are the following: Pyla Venkataswamy Naidu @ Babu filed O.S.No.132 of 1995 on the file of the Subordinate Judge, Yellamanchili for specific performance of agreement to sell dated 16.08.1992 allegedly executed by Kundrapu Kondadu, the first defendant and his son Nookaraju in respect of agricultural land of an extent of Ac.32.48½ cents. The other defendants in O.S.No.132 of 1995 are the wife and children of the first defendant’s son Kundrapu Nookaraju. The plaintiff filed the suit against defendants 2 to 4 on account of death of Kundrapu Nookaraju who is one of the executants of the above said agreement to sell after exchange of notices between the parties to the agreement. The plaintiff filed the suit for specific performance of agreement to sell dated 16.08.1993 stating that the first defendant for the purpose of defraying the expenses to fight the litigation against Pyla Narasimha Naidu who is no other than the elder brother of the plaintiff Pyla Venkataswamy and ultimately to discharge the loans borrowed from the plaintiff and another and upon receiving the balance of sale price, executed the above mentioned agreement to sell in favour of the plaintiff. It is stated by the plaintiff in his plaint that the first defendant having borrowed an amount of Rs.1,34,000/- from the plaintiff and an amount of Rs.86,000/- from one Pedda Appanna @ Yerrabbai executed two promissory notes dated 10.10.1990 and 26.05.1992 respectively in their favour and as per the terms of the agreement to sell, within one year of its execution, the plaintiff has to discharge the above mentioned debts and pay the balance of sale price of Rs.30,000/- to the first defendant and the first defendant in turn has to execute the registered sale deed in favour of the plaintiff in respect of schedule mentioned lands. Thus, the total consideration was Rs.3 lakhs and the balance of sale price after repaying the debts was said to be Rs.30,000/- which according to the plaintiff he was always ready and willing to pay, but the first defendant in spite of the repeated demands made by the plaintiff did not execute the registered sale deed in terms of the above mentioned agreement to sell and thereupon got issued a legal notice dated 14.08.1994 to the first defendant and his son calling upon them to execute the registered sale deed but they did not do so and gave a contentious reply refuting all the allegations mentioned in the registered notice. Thereafter, it is said that the plaintiff filed O.S.No.132 of 1995 against the defendants 1 to 4 therein. The suit was resisted stoutly by the first defendant contending that the agreement to sell dated 16.08.1993 and the promissory notes dated10.10.1990 and 26.05.1992 are forged documents, there was absolutely no occasion for him to borrow any amount from the plaintiff or from the said Pedda Appanna, the said documents are forged and fabricated documents devoid of any consideration. His specific contention was based on the point that he was fighting litigation against the elder brother of the plaintiff Pyla Narsimha Naidu up to the Supreme Court, the very suit filed against him was the result of the fabrication and the concoction by Pyla Narsimha Naidu who had set up his own brother as plaintiff and also the rivals of the first defendant, figured as witnesses on behalf of the plaintiff only with a view to deprive him of the fruits of the litigation which he had won against the elder brother of the plaintiff Pyla Narasimha Naidu. Contending as such, the first defendant sought to dismiss the suit. The second defendant who is the mother of the minor defendants 3 and 4, however, filed written statement which was adopted by defendants 3 and 4, stating inter alia that after death of her husband who is the second executant of the agreement to sell dated 16.08.1993, the first defendant started acting against her interests and her minor children in collusion with the plaintiff, the first defendant knocked away the entire sale consideration so far paid under the agreement, she has no objection to execute the registered sale deed in favour of the plaintiff in terms of the agreement to sell, dated 16.08.1993 but the remaining sale consideration has to be paid to her and her children. Thus, she consented for a decree for specific performance in favour of the plaintiff provided; the balance of sale consideration is paid to her and her children. Basing on the rival contentions the crucial issues which arose for consideration before the learned trial Court were whether the agreement to sell dated 16.08.1993 and the promissory notes dated 10.10.1990 and 26.05.1992 are true and genuine and whether any consideration had been passed thereunder and whether the said documents are forged and fabricated at the instance of Pyla Narsimha Naidu, the elder brother of the plaintiff and the other opponents of the first defendant with a view to deprive him of the schedule mentioned lands despite his success in court litigation. In support of his case, the plaintiff examined himself as PW-1 besides examining PWs.2 to 7 and marking Exs.A-1 to A-13. The first defendant on the other hand examined DWs.1 to 5 and marked Exs.B-1 to B-6. Exs.C-1 to C-17 were also marked through DW-5. PWs.3 and 4 the attestors and PW-2 the scribe of the agreement to sell dated 16.08.1993 which is marked as Ex.A-1, however, stated in their evidence before the learned trial Court that the agreement to sell was executed in the circumstances stated by the plaintiff and the consideration was passed in the manner as was stated by the plaintiff. DW-2, a witness examined on behalf of the first defendant however stated that PWs.2 to 4 are the close relatives and the henchmen of the plaintiff. The said witnesses also mentioned in their evidence about the relationship of PWs.2 to 4 with the plaintiff. DW-2 further deposed that he is an agriculturist having lands in Duppithuru village to which village the plaintiff also belongs and that the plaintiff does not have any lands, so also plaintiff’s brother Narsimha Naidu. DWs.3 and 4 are the V.A.Os. DW-3 stated in his evidence that the plaintiff has got 2 or 3 acres of land in Bhogapuram village which is a dry land and he cultivates the land through tenants by raising casuarina plantation. DW-4 who gave evidence with reference to relevant records stated that the plaintiff does not own any lands in Duppithuru village. Thus, the first defendant was able to demonstrate before the learned trial court that PWs.2 to 4 are the close relatives and henchmen of the plaintiff and that he does not own and possess sufficient land to lend such a huge amount to the 1st defendant. But the said evidence was not taken into consideration by the learned trial court on the ground that there is no personal enmity between the plaintiff and the first defendant as per the version of the first defendant in his cross examination and also that the plaintiff has some land and therefore it might be possible for him to advance the amount to the first defendant. At the instance of the first defendant, Ex.A-1 containing the thumb marks along with some admitted thumb marks of the 1st defendant which were obtained in the court in the presence of the parties and their counsel were sent to the finger print expert. The promissory notes were also sent to the expert for his opinion. The finger print expert gave his opinion and he was also examined as DW-5. His evidence as well and his report Ex.C-13 indicated that the disputed thumb mark on the first page of Ex.A-1 agreement is identical with the admitted thumb marks but the thumb impressions on the other pages of Ex.A-1 agreement were not suitable for comparison for want of clear cut, ridge characteristics. Further DW-5 gave his opinion that the thumb impressions contained on Exs.A-2 and A-3 promissory notes and Exs.A-4 and A-5 endorsements are that of the first defendant. The learned trial court having attached much weight to the opinion of DW-5, the finger print expert and also considering the evidence of the attestors and the scribe of Ex.A-1 agreement to sell held that the plaintiff is entitled for a decree of specific performance of contract and accordingly decreed the suit filed by him. Against the said decree and judgment, A.S.No.986 of 2001 and A.S.No.3664 of 2004 are filed. To have a complete understanding about the litigation in respect of subject matter of the suit, it is necessary to notice the earlier litigation concerning the parties and certain developments which took place during the pendency of the litigation between the parties before the various courts. Kundrapu Kondadu, the first defendant filed O.S.No.201 of 1971 on the file of the Principal Senior Civil Judge, Visakhapatnam against his father Kundrapu Narasimham for partition of the properties and the said suit was decreed holding that the first defendant is the adopted son of Kundrapu Narsimham. In the said suit, Pyla Narasimha Naidu was the 4th defendant. Pyla Narasimha Naidu (D-4) filed A.S.No.193 of 1978 against the said judgment and the appeal was dismissed. Against the said judgment, the defendant No.4 filed LPA No.23 of 1985 and the same was dismissed. Thereafter, SLP (Civil) No.5919 of 1994 filed by him was also dismissed. He also filed O.S.No.20 of 1989 on the file of the Subordinate Judge, Anakapalli which was re- numbered as O.S.No.5 of 1996 on the file of the Senior Civil Judge, Yellamanchili for declaration that he is the adopted son of Kudrapu Narasimham. Therefore, Pyla Narasimha Naidu who is no other than the elder brother of the plaintiff in O.S.No.132 of 1995 lost the earlier litigation to the first defendant and ultimately his contention that he is the adopted son of Kundrapu Narasimham was rejected and it became final. As we have already said, O.S.No.132 of 1995 is filed by Pyla Venkataswamy @ Babu who is no other than the younger brother of Pyla Narasimha Naidu after Pyla Narsimha Naidu lost earlier round of litigation against the 1st defendant which became final with the dismissal of SLP (Civil) No.5919 of 1994 on 25.04.1994. It is also relevant to notice that Pyla Narsimha Naidu styling himself as Kundrapu Narsimha Naidu executed a registered sale deed in favour of his brother Pyla Venkataswamy @ Babu for an extent of Ac.10.03 cents in Sy.Nos.30, 31, 39, 40/2 of Dupputuru village of Visakhapatnam district. He also executed another sale deed in favour of the mother-in-law and the brother-in-law of Pyla Venkataswamy @ Babu for an extent of Ac.9.20 cents in Sy.Nos.31, 38, 39, 40/2 of Dupputuru village styling himself as Kundrapu Narasimha Naidu. It is further relevant to mention in this context that pending O.S.No.132 of 1995, Kundrapu Kondadu, the first defendant along with his all legal heirs sold the suit property in favour of P. Ramaswamy Naidu (P.R.S. Naidu) and others under registered agreements of sale- cum-GPA. P.R.S. Naidu, the GPA holder in turn executed 13 registered sale deeds in favour of himself and third parties on 28.05.2003. On 14.02.2005 registered ratification deeds were executed by Kundrapu Laxmi and others. It is significant to notice that pending the present appeal, Kundrapu Kondadu, the first defendant executed collusive sale deed in favour of plaintiff viz. Pyla Venkataswamy @ Babu on 14.07.2005. Earlier to that, P.R.S. Naidu and 12 others filed ASMP No.12019 of 2004 in the appeal stating that the agreements of sale-cum-GPA followed by sale deeds were already executed in their favour, there was a collusion between their vendor Kundrapu Kondadu, the first defendant and the plaintiff Pyla Venkataswamy and that they be added as respondents in the appeal. Thereafter, Kundrapu Kondadu, the first defendant filed ASMP No.15768 of 2004 seeking withdrawal of the appeal. This court on 22.12.2004 holding that irrespective of Section 52 of Transfer of Property Act, pendentilite purchasers are entitled to come on record under Order 22 Rule 10 of CPC to safeguard their rights and interest, allowed ASMP No.10219 of 2004 and dismissed the ASMP No.15768 of 2004 filed by the first defendant seeking withdrawal of the appeal. P.R.S. Naidu and others filed suit OS No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam against Pyla Venkataswamy, the plaintiff herein for cancellation of registered sale deed executed in his favour by the first defendant and for permanent injunction in respect of the suit property. They also filed I.A.No.1072 of 2004 seeking temporary injunction, temporary injunction was granted initially by the trial court and on contest it was made absolute. Feeling aggrieved, Pyla Venkataswamy @ Babu, the plaintiff herein filed C.M.A.No.772 of 2006. The said C.M.A. is directed to be listed along with A.S.No.986 of 2001. While the appeal is pending, Kundrapu Kondadu died, thereafter P.R.S. Naidu and others filed A.S.M.P.No.1280 of 2010 claiming to be successors and to transpose them as appellants by virtue of Order 22 Rule 10 of CPC read with Order 1 Rule 10 of CPC in order to contest the decree passed by the lower Court. To dispose of the aforementioned two appeal suits and C.M.A., we need to address the following questions: i) Whether P.R.S. Naidu and others who were impleaded themselves as respondents 5 to 17 in the appeal (the petitioners in ASMP No.1280 of 2010) can be transposed as appellants in A.S.no.986 of 2001 and can be permitted to prosecute the appeal on account of the death of the first defendant pending the appeal? ii) Whether the decree passed by the Senior Civil Judge, Yellamanachili in O.S.No.132 of 1995 granting specific performance of agreement to sell dated 16.08.1993 in favour of the plaintiff and against the defendants therein can be sustained or is liable to be set aside, having regard to the facts and circumstances indicated by us hereinabove? iii) Whether the order and decree passed by the II Additional District Judge, Visakhapatnam in I.A.No.1072 of 2004 in O.S.No.357 of 2004 granting temporary injunction pending disposal of the said suit which has been questioned in C.M.A.No.772 of 2005 by Pyla Venkataswamy @ Babu (plaintiff in O.S.No.132 of 1995) can be set aside? POINT NO.1: The petitioners in ASMP No.1280 of 2010 (respondents 5 to 17) in the appeal filed the said petition under Order 22 Rule 10 of CPC contending that pending A.S.No.986 of 2001 the first defendant along with his four daughters and their children executed two registered G.P.A.-cum-agreement to sell in favour of P.R.S. Naidu and others on 08.05.2000 in respect of the entire suit schedule land comprising Ac.32.48 ½ cents and received the sale consideration. That on the strength of the said G.P.A.-cum-agreement to sell as many as 13 registered sale deeds were executed on 28.05.2004 in favour of different persons including P.R.S. Naidu and subsequently registered ratification deeds were also executed by respondents 3 to 5. The petitioners also submitted that having come to know that the first defendant sold away the schedule mentioned lands to the plaintiff on 14.07.2004 and that he was taking steps to withdraw the appeal, they were constrained to file ASMP No.12019 of 2004 in A.S.No. 986 of 2001 to implead them as respondents 3 to 5 in the appeal, the first defendant filed A.S.M.P.No.15768 of 2004 to withdraw the appeal. This court having jointly heard both the petitions, passed a common order on 22.12.2004 dismissing the A.S.M.P.No.15768 of 2004 filed by the first defendant and allowing the ASMP No.12019 of 2004 filed by P.R.S. Naidu and others and thus, P.R.S. Naidu and others came on record as respondents 5 to 17. They submitted in the present petition that as they have already on record as respondents 5 to 17 and in view of the fact that the respondents 3 to 5 in the appeal who are daughters-in-law, grand children of Kundrapu Kondadu ratified the sale deeds executed in their favour, they became successors in interest of the first defendant and therefore, they may be permitted to prosecute the appeal as appellants on account of death of the first defendant and for that purpose they may be transposed as appellants. The petition was opposed by the plaintiff (second respondent) contending as follows: Mere execution of sale deed will not create any right in favour of the petitioners during the pendency of the appeal and there was no devolution of interest of the first defendant as such in favour of the petitioners. The first defendant, Kundrapu Kondadu since complied with the decree pending the appeal, it cannot be said that he had abandoned the right in the property. ASMP No.1280 of 2010 was filed by P.R.S. Naidu and others after the plaintiff (second respondent) filed ASMP No.1271 of 2010 praying to dismiss the appeal as abated. P.R.S. Naidu and others cannot be treated as persons representing the appellant and therefore they cannot oppose the decree for specific performance in favour of the plaintiff by seeking their transposition as the appellants to prosecute the appeal, P.R.S. Naidu and others ( respondents 5 to 17) are trying to expand the scope of appeal which is not permissible in law. It is also contended by the plaintiff that having filed a separate suit O.S. No.357 of 2004 on the file of the II Additional District Judge, Visakhapatnam for declaration of title in respect of the suit schedule property, it is not open for the respondents 5 to 17 to contest the decree which is the subject matter in the present appeal. He further contended that since they had knowledge of the earlier agreement and pendency of the suit they are bound by the decree of specific performance passed by the trial Court which is the subject matter of challenge in the present appeal and therefore, their prayer to transpose them as appellants has to be rejected. Kundrapu Kondadu, the first defendant who filed the present appeal vehemently contended that Pyla Narasimha Naidu who lost the litigation against him having fought it up to the Supreme Court on the ground that he is the adopted son of Kundrapu Narasimham had set up the plaintiff who is his brother as plaintiff and got filed the suit for specific performance of agreement through him. He also contended that the said agreement to sell and the promissory notes, which were allegedly executed by him are forged documents and that all the witnesses examined on behalf of the plaintiff are his close relatives and his henchmen and therefore, no decree for specific performance can be passed against him and in favour of the plaintiff. If it so happened such a person (the first defendant) executed registered sale deed in favour of the plaintiff for the plaint schedule lands in respect of which the present appeal is pending, it has to be necessarily presumed that there is collusion between the first defendant and the plaintiff. P.R.S. Naidu and others purchased the property pending suit under registered G.P.A.-cum-agreement to sell from the first defendant and subsequently registered sale deeds were executed in their favour for the schedule mentioned lands. The alleged sale was also ratified by the respondents, it cannot be said that P.R.S. Naidu and others have not acquired any right or interest in the subject matter of the suit. We are unable to accept the contention that the claim of P.R.S. Naidu and others is either pretence or designed to expand the scope of the appeal and thus frivolous. Though several authorities have been cited by the learned counsel appearing on either side, we are inclined to refer the following judgments of the Hon’ble Supreme Court which are considered to be the authority on the disputed question. 1 ) SMT. SAILA BALA DASSI v. NIMRMALA SUNDARI DASSI AND ANOTHER[1] wherein it has been laid down that “even if a suit is pending when the transfer in favour of the appellant was made, that would not affect the result when no application had been made by the applicant to be brought on record in the original court during the pendency of the suit, the application made to the appellate Court cannot be sustained under Order 22, Rule 10 CPC, when the transfer was made in favour of the appellant prior to filing of that appeal and not during its pendency.” 2) KHEMCHAND SHANKER CHOUDHARI AND ANOTHER v. VISHNUHARI PATIL AND OTHERS[2] wherein it was held as follows: “A transferee pendente lite of an interest in an immovable property which is the subject matter of a suit is a representative in interest of the party from whom he has acquired that interest. The transferee has a right to be impleaded as a party to the proceedings and to be heard before any order is made by virtue of Rule 10 of Order 22, CPC. He can also prefer an appeal against an order made in the said proceedings but with the leave of the appellate court where he is not already brought on record. A person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding can participate in the execution proceedings his name may not have been shown in the decree, preliminary or final. The Collector may proceed to make