*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY +Second Appeal No.444 of 2011 % Dated 21.07.2011 # Tarigoppula Kondala Rao and another. ….Appellants $ Dodda Venkateswara Reddy and others. ….Respondents ! Counsel for the appellants : Sri Suresh Shiv Sagar ^ Counsel for respondents:- : -- < GIST: > HEAD NOTE: ? Cases referred: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.444 of 2011 JUDGMENT: The deceased-1st appellant filed O.S.No.213 of 1995 in the Court of Junior Civil Judge, Markapur, against the respondents for the relief of specific performance of an agreement of sale, dated 17.06.1998. During the pendency of the suit, he died and his legal representatives i.e., appellants 2 to 8 were brought on record. The trial Court dismissed the suit, through its judgment, dated 12.08.2003. Thereupon, the appellants filed A.S.No.197 of 2007 in the Court of VI Additional District Judge, Markapur. The appeal was dismissed on 27.06.2008. Hence, this second appeal. The brief facts are that the 2nd respondent is the absolute owner of the suit schedule property. He is said to have executed an agreement of sale in favour of the 1st respondent on 20.08.1985, marked as Ex.A.1. The 1st respondent, in turn, is said to have executed another agreement of sale, dated 17.06.1988, marked as Ex.A.2, in favour of the appellants. It was pleaded that the 2nd respondent received entire consideration, delivered possession of the land and has agreed to execute sale deed in favour of the 1st respondent or his nominee and since the 1st appellant happens to be the nominee of the 1st respondent, the 2nd respondent was under obligation to execute a sale deed. Respondents 1 and 2 remained ex parte. The suit was contested by the 3rd respondent alone. She stated that the suit schedule property was conveyed to her, through sale deed, dated 14.03.1989, marked as Ex.B.2, by the 2nd respondent. Learned counsel for the appellants submits that both the Courts below erred in holding that the appellants are not entitled for the decree of specific performance, on account of lack of privity of contract. It is also urged that the sale in favour of the 3rd respondent or his transferor is untenable in law, since it was not followed by delivery of possession. The trial Court framed the following issues for its consideration: 1. whether the 2nd defendant entered into an agreement of sale, dt.28-8-1985 in favour of first defendant for sale of the suit and inducted the first defendant into possession? 2. whether the first defendant and the deceased first plaintiff have entered into mutual agreements to sell that is the first defendant agreeing to sell the suit and the first plaintiff agreeing to sell his own site to the first defendant by the agreement 16-6-1987? 3. whether the 2nd and 3rd defendants fraudulently brought about the sale deed in favour of 3rd respondent dt:14-3-1989? 4. whether the third defendant is not a transferee for consideration without notice of earlier agreement of sale, dt.20-8- 1985? 5. whether the plaintiff 2 to 8 are entitled for a decision for specific performance of agreements of sale, dt:17-6-1988 against the defendants one and two (1&2)? On behalf of the appellants, as many as 7 witnesses, being P.Ws.1 to 7 were examined and two agreements referred to above were filed. On behalf of the 3rd respondent, D.Ws. 1 to 3 were examined and he filed Exs.B.1 and B.2. The suit was dismissed and in the appeal preferred by the appellants, the lower appellate Court felt that the issues framed by the trial Court shall be treated as points for consideration. The appeal was also dismissed. An essential ingredient in a suit for specific performance is that there must be privity of contract between the person, who holds the title to the property and the plaintiff. In the instant case, admittedly, the 2nd respondent was the owner of the property. The 1st appellant did not have any privity of contract with him. It was pleaded that the 2nd respondent executed Ex.A.1 in favour of the 1st respondent and that the latter in turn executed Ex.A.2 in favour of the 1st appellant. Even if that is true, there is no scope for the 1st appellant to compel the 2nd respondent to execute the sale deed. Assuming that Ex.A.1 has recitals to the effect that the entire consideration was paid and the possession of the property was delivered, those factors would become handy for the 1st appellant either to seek the relief of specific performance of the agreement or to resist any attempt to dispossess by taking shelter under Section 53-A of the Transfer of Property Act. In an extreme situation, the 1st respondent could have filed a suit for declaration, in case he is in possession of the property after paying the entire consideration. It is only when the 1st respondent had acquired title, that he could have executed an agreement of sale in favour of the 1st appellant. It is urged that there is a clause in Ex.A.1 to the effect that the 2nd respondent has undertaken to execute a sale deed in favour of the 1st respondent or his nominee. The appellants claim to be nominees of the 1st respondent. A suit for specific performance in such a situation could have been filed, if only the 1st respondent has joined the appellants. The very fact that the 1st respondent arrayed as defendant discloses that he did not sail with the appellants. Another contention was pertaining to the accrual of the property to the 3rd respondent. The record discloses that the 2nd respondent executed sale deed, dated 14.03.1989 i.e., Ex.B.2 in favour of the 3rd respondent. Ex.B.1 is a document, through which the 1st respondent has purchased the property in the year 1982. As long as there are no disputes between respondents 2 and 3, in relation to Ex.B.2, the appellants cannot point out any alleged defect in it. In case, the sale in favour of the 3rd respondent was not followed by delivery of possession, it is for him to work out remedies. The trial Court and the lower appellate Court have examined the matter from the correct perspective and this Court does not find any substantial question of law in the second appeal for consideration. Therefore, the second appeal is dismissed. There shall be no order a to costs. __________ 21.07.2011 JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.444 of 2011 Date: 21.07.2011 JSU