HONOURABLE SRI JUSTICE P. SWAROOP REDDY APPEAL SUIT No.282 OF 1988 JUDGMENT: This Appeal Suit is filed against the judgment in O.S. No.30 of 1981 dated 16-09-1987 passed by the learned Subordinate Judge, Narsapur. 2. Appellant is plaintiff and respondent Nos.1 to 4 are defendant Nos.1 to 4 in the suit. 3. For the sake of convenience, the parties are referred to as they arrayed in the suit before the trial Court. 4. Plaintiff filed the above suit for the relief of specific performance of agreement of sale dated 08-03-1981 in respect of the suit property and for possession of the same and alternatively for return of Rs.10,016/- with future interest and costs. 5. The case of the plaintiff is that defendant Nos.2 and 3 are minor sons of defendant No.1, who is manager of their family. Suit schedule property is joint family property of defendant Nos.1 to 3. defendant No.1 for himself and on behalf of his minor sons, defendant Nos.2 and 3, offered to sell the suit property to the plaintiff for Rs.85,000/- on 08-03-1981 for discharging family debts and for marriage expenses of his daughter and accordingly he has executed an agreement of sale on 08-03-1981 in favour of the plaintiff after receiving Rs.5,000/- towards advance of the sale consideration. As per the terms of agreement of sale, plaintiff has to pay Rs.25,000/- on or before 15-04-1981 and remaining amount on or before 30-06-1981 and shall obtain a sale deed in his favour. In case, plaintiff commits default, he has to pay 12% interest on the balance of sale consideration and if the defendants commit default, they have to take the balance sale consideration after deducting the amount calculating interest at 12% per annum. After execution of agreement of sale, plaintiff was always ready and willing to perform his part of contract at all the material time. He got issued a telegraphic notice dated 14-03-1981 calling upon the defendants to execute a sale deed by receiving the balance sale consideration. As the defendants did not execute sale deed, he filed the suit. It is also mentioned in paragraph No.10 of the plaint that if the plaintiff is not entitled to the primary relief of specific performance of agreement of sale, alternatively return the advance amount of Rs.5,000/- paid by him to defendant No.1 with 12% interest besides damages of Rs.5,000/-. 6. Defendant No.1 filed a written statement and the same was adopted by defendant Nos.2 and 3. Averments of the written statement are that contention of the plaintiff that defendant No.1 executed an agreement of sale on his behalf and on behalf of his sons, defendant Nos.2 and 3, for selling the suit property for family necessities and receiving advance of Rs.5,000/-, is incorrect. Though there is no dispute about defendant No.1 executing the agreement dated 08-03- 1981, it was executed in the following circumstances. He (D-1) executed an agreement of sale dated 05-03-1981 in respect of the suit property in favour of one Karre Srinivasa Rao of Burugupalli for Rs.80,000/- and received an amount of Rs.20,000/- under the agreement towards advance sale consideration and the property was delivered to him on the date of agreement itself. Having come to know about the said agreement, plaintiff approached him (D-1) requesting an agreement in his favour and he (D-1) informed that he (D-1) has already executed an agreement for the suit property in favour of Karre Srinivasa Rao and the property was also delivered to him. On that, plaintiff represented that he would fight out the litigation that may ensue and that he would bear all the expenses and asked defendant No.1 to execute agreement in his favour and believing him (plaintiff), he (D-1) executed agreement of sale dated 08-03-1981 on his behalf and also on behalf of defendant Nos.2 and 3, as their guardian, and received Rs.5,000/- towards advance sale consideration. Thus, plaintiff was fully aware of prior agreement in favour of Karre Srinivasa Rao and the said agreement being possessory agreement of sale. In spite of that, plaintiff wanted to pursue litigation and obtained agreement of sale dated 08-03-1981 in spite of protest by defendant No.1. Thus, plaintiff is not a bona fide purchaser of the suit property for value without notice. The allegation that plaintiff was always ready and willing to perform his part of contract is false. The allegation that plaintiff demanded for execution of the sale deed is incorrect. Defendant No.1 got issued a registered notice dated 20-03-1981 along with a reply registered notice and he returned the amount of Rs.5,000/- at that time. The suit is bad and is liable to be dismissed. 7. Defendant No.4 Karre Srinivasa Rao, who was impleaded subsequently, filed his written statement contending that he obtained agreement of sale dated 05-03-1981 in respect of the suit property for Rs.80,000/- and paid an amount of Rs.20,000/- to defendant No.1 under the said agreement and the property was delivered to him on that day of agreement itself. It was a possessory agreement of sale. Subsequently, on 19-04-1981, he paid an amount of Rs.10,000/- and on 09-07-1981 another amount of Rs.40,000/- by way of cheque of Andhra Bank. Subsequently, the suit property was measured and it was found to be Acs.4-63½ cents of land only, but not Acs.4-71 cents. Thus, there was deficit of Ac.0-08 cents of land and defendant No.1 agreed to forego the value of the deficit of Ac.0-04 cents of land. 8. Based on the pleading, the following issues were framed by the trial Court for trial: “ 1. Whether the suit agreement of sale dated 8-3-1981 was executed by the defendants in the circumstances mentioned in the written statement ? 2. Whether the suit is bad for non-joinder of necessary parties to the suit ? 3. Whether the plaintiff has any cause of action to file the suit ? 4. Whether the plaintiff is entitled for specific performance ? 5. Whether the plaintiff is entitled for alternative relief ? 6. To what relief ? ” 9. On behalf of the plaintiff, PWs.1 to 8 were examined and Exs.A-1 to A-8 were marked. On behalf of the defendants, defendant Nos.1 to 8 were examined and Exs.B-1 to B-17 were marked. Exs.X-1 to X-8 were also marked. 10. Based on the material on record, the learned trial Judge held that plaintiff is not entitled to the relief of specific performance of the agreement of sale, however he is entitled to only alternative relief of return of advance amount of Rs.5,000/- (Rupees five thousand only) and also damages, as defendant No.1 executed an agreement of sale, Ex.A-1, in his favour, while defendant Nos.2 and 3 were minors and defendant No.4 is found to be a bona fide purchaser of the suit property under the agreement of sale Ex.B-1, which is much prior to Ex.A-1 agreement of sale in favour of the plaintiff, as such, defendant No.1 alone is liable to pay damages to the plaintiff. Aggrieved of the same, this appeal is filed by the plaintiff. 11. Now the point for consideration is whether there are any grounds for allowing this appeal ? 12. There is no dispute about defendant No.1 executing Ex.A-1 agreement of sale in favour of the plaintiff. But, material on record revealed that prior to Ex.A-1 agreement of sale, defendant No.1 executed Ex.B-1 agreement of sale in favour of defendant No.4. In those circumstances, trial Court granted only the alternative relief of return of the advance amount of Rs.5,000/- paid by the plaintiff to defendant No.1 under Ex.A-1 agreement of sale and for damages. 13. Plaintiff has taken several pleas stating that agreement in favour of defendant No.4 was a subsequent manipulation, as such, he is entitled to decree for specific performance of agreement of sale. 14. There is no dispute that the relief for specific performance is a discretionary relief and the Courts can grant the same or can grant alternative relief. In the present case, trial Court granted alternative relief for the reasons mentioned in the judgment therein and there is no possibility for the plaintiff to question this aspect of the finding of the trial Court i.e., granting alternative relief particularly when reasons are given for the same. 15. Learned counsel for the defendants relied on a decision of the Hon’ble Supreme Court in A.C. Arulappan v. Ahalya Naik[1], and also the decisions of this Court in Veera Pratapa Korikonda Hamvira Krishnamraju and another v. Koppula Narayana and others[2] and Gonnuri Ramachandra Rao and others v. Gorrela Suryachandra Rao[3]. In view of the undisputed decisions of law referred supra, it cannot be said that plaintiff is entitled to the relief of specific performance of agreement of sale in the circumstances of the present case. Thus, there are absolutely no merits to interfere with the findings of the trial Court. The Appeal suit fails and is liable to be dismissed. 16. Accordingly, the Appeal Suit is dismissed. No order as to costs. _______________________ P. SWAROOP REDDY, J September 6, 2010. PV [1] 2001(5) ALD 90 (SC) [2] 2009(2) ALD 758 [3] 2008(1) ALD 596