IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S.APPA RAO A.S. NO.127/1997 DT. 27–10-2011 Between: K. Venkata Subba Rao … Appellant And M. Venkata Hanuma Kumar … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S. APPA RAO A.S. NO.127/1997 JUDGMENT: (Per Hon’ble Sri Justice A.GOPAL REDDY) This regular appeal by the defendant in OS No.76 of 1986 on the file of Subordinate Judge, Machilipatnam is filed against the judgment and decree of that Court dt. 16-10-1996, decreeing the suit filed by the plaintiff seeking specific performance of contract of sale dt. 1-4-1981 and direction to the defendant to execute the sale deed in favour of the plaintiff. For the sake of convenience, the parties to the appeal have been described as arrayed in the trial court. The case of the plaintiff is as follows: The defendant who is the absolute owner of the plaint schedule property situated at Sana Rudravaram village offered to sell the same. The bargain between the plaintiff and the defendant was settled for a sum of bilmaktha Rs.46,000/-. On the date of settlement, the plaintiff paid a sum of Rs.26,000/- to the defendant towards sale consideration. Subsequently, terms as agreed were put in writing under the possessory contract of sale and the defendant executed the possessory contract of sale on 1-4-1981 on receipt of the balance sale consideration of Rs.20,000/- on the said date and putting the plaintiff in possession of the same. Since then, the plaintiff has been in possession of the plaint schedule property by paying property tax. The plaintiff also obtained ryotwari passbook on 6-4-1981 duly signed by the Village Karanam and countersigned by the Revenue Inspector of Korukollu and since from 20-1-1982 the plaintiff obtained tax receipts from the village officers. In spite of plaintiff pressing the defendant to execute a registered sale deed, the defendant, who happened to be a close relation, postponing the execution of the sale deed. The plaintiff is always ready and willing to perform his part of contract. In spite of pressing the defendant to execute the registered sale deed, the defendant is not ready and willing to perform his part of contract due to increase of prices of land in Sana Rudravaram. Hence, the plaintiff filed the above suit for specific performance of contract of sale dt. 1-4-1981 stating that the cause of action arose when the bargain was settled for bilmaktha amount of Rs.46,000/-; when the plaintiff paid Rs.26,000/- to the defendant prior to agreement of sale dt. 1-4-1981; when the amount of Rs.20,000/- was received by the defendant form the plaintiff on 1-4-1981 towards balance of sale consideration and when the plaintiff demanding the defendant to execute the registered sale deed on 10-3-1984 and 20-6-1986. The defendant filed the written statement while denying about payment of Rs.26,000/- prior to the execution of contract of sale dt. 1-4- 1981 and execution of the contract of sale on 1-4-1981 and receipt of Rs.20000/- on 1-4-1081 stated as follows: The contract of sale is a rank forgery and not enforceable. No prudent person would agree for a consideration of Rs.46,000/- without enquiring into the market value of the property as the market value of the plaint schedule land even in 1981 was Rs.20,000/- per acre. It is quite improbable that the defendant would have sold the plaint schedule property to an extent of Ac.8-52 ½ cents for a price of Rs.46,000/-. The plaint schedule property has been in possession and enjoyment of the defendant after 1-4-1981 also. The plaintiff is too young and was an employee at Hyderabad, and he prosecuted his studies till recently and he never stayed at Gopalapuram at any time. The litigation is handled by his father Madduri Satya Syamala Bhaskara Sarma of Gopalapuram. The plaintiff is not in possession of the property as alleged. Obtaining land revenue receipts and entering into the ryotwari pass book are all took place by misrepresentation. There was no occasion for the plaintiff to press the defendant for execution of a registered sale deed. Undisputedly, no registered notice was given before filing of the suit and probably the plaintiff’s father avoided to give the notice as he knew the contract of sale will naturally be denied, in which case the defendant would be alert and it would not be possible to obtain ex parte orders of injunction against the defendant. When there is no agreement of sale, the question of plaintiff to perform his part of contract of sale does not arise. The father of the plaintiff, P.W.1, is no other than the maternal uncle of the defendant. The mother of the defendant died leaving the defendant and his sister. The father of the defendant is a retired Judicial Officer and he married again on the death of his first wife, but the defendant remained at Gopalapuram. The father of the plaintiff has succeeded to considerable extent of land and the defendant has about Ac.1-68 cents of land as well as the plaint schedule land and he became entitled to by means of a device executed by Kasibhotla Kameswaramma and the defendant was assisting his maternal uncle in the cultivation of their land. When the father of the plaintiff wanted to grab the plaint schedule land as early as in 1975 by getting the same included in his declaration given under section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act,1973 (for short “the Land Ceiling Act”) the grand father of the defendant, on coming to know of the same, admonished his own son, who tried to claim this defendant’s property as his own and got the same excluded from the declaration. But by about 1981, differences arose between the defendant on one hand and the step brothers on the other. The defendant came to know that the step brothers were scheming to lay a false claim on the property of the defendant as if they have a right over the plaint schedule land. The plaintiff’s father co-operated with the defendant in the purchase of Ac.3- 49 cents situated in the village of Gopalapuram from Madduri Narasimha Murthy, who is no other than the junior paternal uncle of Bhaskara Sarma. It was felt that it would be better to postpone the execution of the sale deed till the dispute is dissolved. The maternal uncle of the defendant also advised the defendant that he would be able to save the property before the threatened litigation, which was launched by the step brothers. The plaintiff’s father advised him to put the property in the name of some third party temporarily till the risk is warded off. The defendant agreed to get the property in the name of a third party without actually committing himself in writing. On selecting the plaintiff as benamidar, as there is no other person in whom confidence can be reposed, without there being any execution of contract of sale P.W.1 got the land including in the holding of the plaintiff and also obtaining land revenue receipts in the name of the plaintiff with the money received from the plaintiff. So the land in dispute stands in the name of the plaintiff, but the defendant alone has been in possession and enjoyment of the property. There was no occasion for the defendant to suspect the bona fides of the plaintiff’s father as the defendant was also attending to the cultivation of the plaintiff’s family and the defendant was under the belief that the plaintiff’s father does every thing for the good of the defendant. As the days passed by, there was a steep hike in the prices of land, the plaintiff’s father has his land adjacent to Ac.3-49 cents and has been putting up crop heaps in that land tentatively and getting them thrashed away with the permission of the defendant. The defendant also sold nearly AC.0-54 cents of site out of Ac.3-49 cents to third parties. The plaintiff’s father wanted that he might be sold an extent of Ac.3-40 cents for the price at which the defendant purchased. The plaintiff’s father who became jealous at the benefit the defendant is getting by the spiraling in prices of the land and also on their refusal of the defendant to sell the land as per his instruction, started a foul game by getting notice issued on behalf of the defendant through Sri T.V. Subba Rao, advocate since land ceiling proceedings, to Gudavalli Rama Krishna and others behind his back. The defendant came to know about it from his respective purchasers and also perused the registered notices issued to them. Gudavalli Ramakrishna and others approached the defendant and questioned him as to why the defendant gave such a notice de horse the terms of agreement he executed in favour of the purchasers. The defendant was dumb founded to see the registered notices issued in his name and also immediately retorted by getting registered notices issued to Sri T.V. Subba Rao, dis-owning the registered notices and also informing him that he never approached the learned Advocate for the purpose of giving any registered notices to his alienees contrary to the same contracts entered into by him and also expressed his suspicion that Madduri Satya Syama Bhaskara Sarma, his maternal uncle. who wanted to grab the property of the defendant, is behind it. Having received the registered notices, the learned counsel T.V. Subba Rao did not give any further reply. Later on Bhaskara Sarma persuaded his junior paternal uncle to deny the sale of Ac.3-49 cents in favour of the defendant and again got another notice issued by Madduri Narasimha Murthy by the very same advocate T. V.Subba Rao. Again Bhaskara Sarma got another notice issued by T.V. SubbaRao in the name of Madduri Narasimha Murthy to the effect that the land of Ac.1-18 cents entrusted to the defendant for raising casuarina garden on condition of sharing the out put and it is also alleged that the defendant removed said casuarina tope for Rs.10,000/- and defaulted to pay half of the same to Narasimha Murthy and a demand was thus made for a payment of Rs.5,000/- from the defendant. The defendant got issued a registered notice stating that he purchased the extent of Ac.3-49 from M.Narasimha Murthy as early as 1979 and paid the consideration and has been in possession and enjoyment of the land and it is also informed that M. Bhaskara Sarma must be responsible for the issuance of notice dt. 13-7-1986. Bhaskara Sarma then changed the venue of litigation to the plaint schedule property, for which land revenue receipts were taken in the name of the plaintiff and to strengthen the case, Bhaskara Sarma also did not hesitate to fabricate the suit contract of sale. Thus the suit contract of sale is nothing but a spurious one. The defendant is entitled for compensation costs to a tune of Rs.3000/- On the above pleadings, the following issues were trial: 1. Whether the contract of sale dt. 1-4-1981 is true, valid and binding on the defendant? 2. Whether the plaintiff is entitled for specific performance of the suit contract? 3. To what relief? Learned trial court, on appreciation of the oral and documentary evidence adduced by the parties, decreed the suit of the plaintiff. Sri N. V. Anantha Krishnan, learned counsel for the appellant/defendant argued that there is no averment by the plaintiff as contemplated under Sec. 16 ( c ) of the Specific Relief Act, 1963, about his readiness and willingness to perform his part of contract and Exs.A-2- agreement of sale and Ex.A-3-receipt and Exs.A-62 are forged documents. P.W.2 is related to P.W.1 and P.W.7 and he has been set up to prove Exs.A-2 and A-3. There is reference of Ex.A-3 in the plaint or in the evidence it was pressed into the court. According to the evidence of attesting witnesses, P.Ws 2 and 4, receipt was shown at the time of execution of Ex.A-2, but there is no mention about the same either in the agreement of sale or in the plaint. Ex.A-4 pattadar pass book was not signed by Mandal Revenue Officer and said to have been issued on 6-4-1981 and the same has not been issued in accordance with the procedure as contemplated under Andhra Pradesh Rights in Land and Pattadar Passbooks Act, 1971. According to the plaintiff, refusal at first instance was in April, 1981 and starting point of limitation is the said date. In the plaint, it was mentioned that cause of action also arose when the plaintiff demanding the defendant to execute the sale deed on 10th March, 1984 and 20th June, 1986, but none of the witnesses spoke about the said dates. In view of the same, the plaintiff has to file a suit for declaration of title by paying necessary court fee and suit for specific performance does not lie as plaintiff asserted about conferring of title and possession in para 4 of the plaint. He further submitted that when the plaint was returned on 3-07-1986 by the court with objections as to how the suit is in time since the agreement is dated 1-4-1981, the same has been represented on 8-7-1986 with an endorsement that as the land has been in possession and enjoyment of the plaintiff, there is no limitation till 12 years and he is entitled to claim the relief beyond three years and the same was again returned on 9-7-1986 to explain how the suit is in time as the suit is filed beyond 3 years of the date of agreement, and the same was not answered by the plaintiff, and therefore, the suit itself is barred by limitation. In support of his contentions, learned counsel placed reliance on the following judgments: 1. PANDURANG GANPAT TANAWADE V. BHAIRU KADAM[1] 2. H.P.PYAREJAN V. DASAPPA (DIED)[2] 3. A.K. LAKSHMIPATHY (D) V. RAI SAHEB PANNALAL H. LAHOTI CHARITABLE TRUST[3] 4. AZHAR SULTANA V. B.RAJAMANI[4] 5. MANJUNATH ANANDAPPA URF SHIVAPPA HANSI V. TAMMANASA[5] 6. ABDUL KHADER ROWTHER V. P.K. SARA BAI[6] 7. RAMZAN V. HUSSAINI[7] 8. AHMADSAHAB ABDUL MULLA V. BIBIJAN[8] He further contended that except plaintiff signing the last page, all other pages are signed by the counsel and said pages are also not in the same alignment and same are not in accordance with the rule 26 of the Civil Rules of Practice. Sri K.Satyanarayana, learned counsel for the respondent- plaintiff while refuting the contentions of the appellant/defendant contended that none of the questions, which were argued by the learned counsel for the appellant/defendant, find place in the written statement. Order 8 Rule 2 mandates pleas have to be taken in the suit for specific performance as envisaged under Form 13 of the Appendix–A to CPC with regard to the pleas to be taken in the written statement. Even in the grounds of appeal, no such plea has been taken. He further contended that mere making a statement by the plaintiff about defendant postponing the registration of sale deed does not give rise to a cause of action, only on unequivocal refusal limitation starts. To substantiate the said contention, he placed reliance on the following judgments: 1. BHAGAT SINGH V. JASWANT SINGH[9] 2. RAJ KUMAR V. JAGWATI DEVI[10] 3. SHAIK BUDDAN SAB V. NAGAMMA[11] According to P.Ws.3 and 7 the demand is on 30th June but not on 28th June as stated in the plaint but cause of action arose is shown in the month of June, 2006. He also contended that it is a possessory agreement as the defendant discharged all obligations and there is nothing to be performed by the defendant except executing sale deed in favour of the plaintiff and therefore, the contention of the defendant that the plaintiff has not ready and willing to perform his part of contract has to be stated as envisaged under Section 16( c ) of the Specific Relief Act and Forms 47 and 48 of Appendix-A to CPC has no relevancy to the present case. To buttress the said submission, reliance is placed on the judgment of the Bombay High Court in TRIMBAK V. NIVRATTI[12]. He further contended that once Ex.A-2-agreement of sale is pressed into service, it is for the defendant to establish the pleas taken in para 7 of his written statement. In the light of the above submissions, the points that arise for consideration in this appeal are: 1. Whether agreement of sale dt. 1-4-1981 (Ex.A-2) is valid and binding on the defendant. If so, the plaintiff is entitled to seek specific performance of the same or not? 2. Whether the suit is barred by limitation? The suit, as such, is filed for specific performance of agreement of sale dt. 1-4-1981 in respect of Ac.8-52 ½ cents covered by items 1 to 4 of the plaint schedule. As per the plaint averments, the defendant agreed to sell the plaint schedule property and bargain was settled at Rs.46,000/- Bilmaktha. The plaintiff paid Rs.26,000/- to the defendant on the date of bargain towards advance, which fact has not been pleaded either in the plaint nor mentioned in the agreement of sale but produced Ex.A-3 receipt dt.28-3-1981 evidencing payment of Rs.26,000/-, followed by agreement of sale dt. 1-4-1981 acknowledging receipt of Rs.20,000/-. The defendant put the plaintiff in possession of the plaint schedule property on the date of execution of agreement of sale. Thus, the defendant conferred absolute title and possession over the plaint schedule property in favour of the plaintiff and the plaintiff has become the owner of the plaint schedule property under possessory agreement dt.1-4-1981 and was paying taxes regularly. Later, the plaintiff also obtained ryotwari passbook singed by Village Karanam on 6-4- 1981, and countersigned by Revenue Inspector. The defendant filed written statement denying bargain and entering into agreement of sale and delivery of possession. The defendant pleaded that the plaintiff’s father is none other than the maternal uncle of the defendant. On the death of the mother of the defendant 40 years ago, the father of the defendant, who is a Judicial Officer, married again, but the defendant resided at Gopalapuram and was cultivating the land. The defendant had Ac.1-68 cents and he succeeded to the plaint schedule property under a will executed by Kasibhotla Kameshwaramma. When the plaintiff’s father included the land in the declaration filed under Sec. 8 of the Land Ceiling Act with an intention to grab the property, on admonishing the defendant’s grand father, the said land was excluded from the declaration and was computed in the holding of the defendant. Differences arose between the defendant and his step brothers, in the year 1981 when the step brothers were laying a false claim over the property of the defendant and the plaintiff’s father co-operated with the defendant in purchasing Ac.3-49 cents of land situated at Gopalapuram from Madduri Narasimha Murthy. To postpone the execution of the sale deed, till the disputes are resolved between the defendant and his step brothers, the defendant’s maternal uncle, Bhaskara Sarma-P.W.1 (father of the plaintiff) advised the defendant that he will save the property from litigation and on his advise to put the property in the name of the third party temporarily till the risk is warded off, the plaintiff was selected. Further, the plaintiff’s father had land adjacent to the plaint schedule property and used to put crop heaps in the land of the defendant and getting them thrashed with the permission of the defendant. The defendant sold Ac.0-54 cents out of Ac.3-49 cents purchased from Madduri Narasimha Murthy to the third parties. At that time, apprehending that the defendant may sell away the remaining extent of property, the plaintiff’s father requested the defendant to sell the land to the plaintiff forgetting the increase in prices. As there was steep hike in the prices of land purchased from Madduri Narasimha Murthy, the plaintiff’s father started the present litigation. P.W.1, who is none other than the father of the plaintiff and maternal uncle of the defendant, stated that the defendant is his sister’s son. The plaintiff purchased Ac.8-52 ½ cents of land on 1-4-1981 for a consideration of Rs.46,000/- and agreement to the said effect was executed. An advance of Rs.26,000/- was paid on 28-3-1981 and on 1-4- 1981 remaining amount of Rs.20,000/- was paid to the defendant and on the same day possession was delivered to the plaintiff. Ex.A-2 was scribed at the house of Dolla Narayana Murthy at Bondada. Kathapalli Suryanarayana Raju-P.W.5 and Gonela Suryanarayana Raju attested Ex.A-2. Bargain was settled on 28-3-1981, on which date, the plaintiff paid a sum of Rs.26,000/- to the defendant and the defendant gave a receipt to the said effect covered under Ex.A-3. On the date of execution of Ex.A-2, balance sale consideration of Rs.20,000/- was paid to the defendant. On the date of execution of Ex.A-2, possession has been delivered to the plaintiff and since then the plaintiff has been in possession and enjoyment of the plaint schedule property. P.W.1 has been demanding the defendant to execute the sale deed, but the defendant postponed the same on one pretext or the other. The plaintiff issued a notice and filed the suit for specific performance of the agreement of sale. In the cross-examination, it was elicited from him that in the land ceiling declaration in Ceiling Case No.1378/1975 of Kaikalur taluk, he included the suit property as he was having a registered will in his favour, which was executed by Kasibhotla Kameswaramma on 27- 10-1959. On defendant filing a claim petition claiming that the suit property is belonged to him on the basis of another will alleged to have been executed by the very same testatrix, the Tribunal allowed the claim petition of the defendant. Since the date of land ceiling proceedings, the suit property was in possession of the defendant till the execution of the suit agreement-Ex.A-2. By the date of execution of Ex.A-2, the plainfff/P.W.7 was studying 1st year B.Sc., and he was physically present at the time of writing Exs.A-2 and A-3. By that time, he was having Ac.10- 08 cents, which was given by him from his ancestral properties in the year 1970. He showed the same in the land ceiling declaration also. In Ex.A-4 pass book, the land given by him to the plaintiff ie., Ac.10-08 cents was not included, whereas the property covered under Ex.A-2 was mutated within 5 days, of execution of Ex.A-2, in the pass book. In Ex.A- 4 column No.4 in second page, mentions the nature of possession but it is kept blank. He is the scribe of Ex.A-3 receipt. At the time of settlement, P.W.7 brought the defendant on 28-3-1981 and on settlement, the plaintiff paid Rs.26,000/- towards advance and on the same day Ex.A-3 receipt was executed by the defendant. Ex.A-3 was retained with the plaintiff till 1993. It was not shown to the scribe of Ex.A-2 but he handed over the same to the defendant herein who in turn showed the same to the scribe. The fact of existence of receipt covered under Ex.A-3 has not been mentioned in the agreement of sale Ex.A-2 nor earlier payment of Rs.26,000/- made on 28-3-1981 was mentioned in Ex.A-2. He admitted that after payment of the balance consideration, the plaintiff will entitle to get a registered sale deed but the defendant in stead of executing the registered sale deed told him that on some urgent work he wants to go to Visakhapatnam to clear off some debts. At the time of preparation of plaint, plaintiff himself was present and he filed the suit in his absence The signatures of his son wherever found are on small papers compared to other papers of the plaint. After execution of General Power of Attorney by the plaintiff in his favour under Ex.A-1 dt. 21-2-1987 he has been attending to court to look after the litigation. At page No.3 at lines 17 and 18 certain words were typed and scored out. Except stating in the same para that