IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.954 OF 2001 Date:09.03.2011 Between:- Syamala Sesharatnam .. Appellant. A N D Syamala Rami Reddy and another .. Respondents. The Court made the following: JUDGMENT: First defendant in O.S.No.217 of 1999 on the file of I Additional District Judge, Guntur, is the appellant herein. 2. The suit was filed for specific performance of the contract of sale dated 11.05.1987 with regard to B-schedule property or in the alternative for refund of a sum of Rs.42,000/- with interest at the rate of 12.5 % per annum. 3. The allegations in the plaint in brief are go to show that the 2nd defendant is the father of the 1st defendant and the 2nd defendant is the owner of the plaint A-schedule property. The 1st defendant is also the daughter-in-law of the plaintiff. There was an agreement for sale of plaint A-schedule properties by the 2nd defendant to the 1st defendant and the amount was paid under different installments under the contract of sale dated 31.07.1985. Out of the sale consideration of Rs.1,35,000/-, an amount of Rs.42,000/- was given by the plaintiff to the 1st defendant and that amount was paid by her to the 2nd defendant and it was agreed that towards the value of Rs.42,000/-, an equal extent of the land from A- schedule property shall be conveyed to the plaintiff in case the amount was not repaid with interest at the rate of 18% per annum. The equivalent land would be Ac.0.31 1/9 cents out of plaint A- schedule property. The said land was shown as plaint B-schedule property. With the above terms, on 11.05.1987 the 1st defendant executed an agreement of sale in favour of the plaintiff. In spite of repeated demands and legal notice, the defendants have not executed the sale deed. Hence the suit. 4. Second defendant field a written statement admitting all the allegations in the plaint and also the contract of sale dated 11.05.1987. It was also pleaded that the 2nd defendant was ready and willing to perform his part of contract. Second defendant also expressed that steps should be taken by the plaintiff to get the land registered in his favour with regard to B-schedule property. It was further pleaded that through one Vuyyuru Brahma Reddy, the defendants are said to have expressed their willingness to perform their part of contract, but the suit was filed. 1st defendant filed a memo adopting the written statement filed by the 2nd defendant. 5. On the basis of the above pleadings, the following issues were framed by the trial Court for trial: 1. Whether the plaintiff is entitled for specific performance of contract? 2. To what relief? 6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A-1 to A-4. On behalf of the defendants, D.Ws.1 and 2 were examined and no documents are marked. 7. After considering the evidence on record, the learned I Additional District Judge, Guntur decreed the suit of the plaintiff for recovery of Rs.55,671/- as claimed by him. 8. Aggrieved by the said judgment, the present appeal is filed by the 1st defendant. 9. The points that arise for consideration are: 1. Whether the agreement of sale dated 11.05.1987 pleaded by the plaintiff is true? 2. Whether the judgment and decree of the lower Court in ordering refund of the amount of Rs.42,000/- with interest, is legal and sustainable? P O I N T S: 10. There is no dispute about the relationship between the parties. There is also no dispute between the 2nd defendant and 1st defendant about the agreement of sale, that was said to have entered on 31.07.1985. According to the case of the plaintiff that out of sale consideration of Rs.1,35,000/- paid by the 1st defendant to the 2nd defendant, a sum of Rs.42,000/- was paid him with an understanding that the amount shall be refunded or in the alternative, the property to the extent of its value shall be conveyed to him and it is B-schedule, which will come to the value of money advanced. The agreement is marked as Ex.A.1. In order to prove the genuineness of Ex.A.1 agreement, apart from the evidence of P.W.1, P.W.2 was also examined. The lower Court has taken into consideration apart from the evidence of P.Ws.1 and 2, the written statement filed by the 2nd defendant, where under he has admitted the entire transaction pleaded by the plaintiff and the said written statement was adopted by the 1st defendant. Having filed the written statement earlier, thereafter an attempt was made to file an additional written statement giving a go-bye to the entire plea made earlier and a contrary plea was sought to be taken to the effect that the suit contract is not true and it is a fabricated document and therefore, they are not liable to pay the amount. In fact such attempt to file additional written statement was not allowed by the lower Court and therefore, the original plea about the admission of the execution of the document and passing of consideration is only available for consideration for the Court. The evidence of the defendants that they have not engaged the Advocate by name Sri K.Subba Reddy, who has filed the original written statement, does not appear to be believable. If the parties have not gone to him, there is no need for him to file a written statement contrary to the interest of the parties. Apart from it, prior to the filing of the suit, a legal notice was given to the defendants and they have not chosen to give a reply. Even from the evidence of D.Ws.1 and 2, there is not of much material to come to the conclusion that somebody is interested in fabricating the agreement and approaching an advocate on their behalf and filing a written statement admitting the liability. In fact, in the cross-examination of D.W.2, who is the 2nd defendant, he has specifically admitted that originally he and his daughter, the1st defendant engaged Sri K.Subba Reddy as their advocate and filed the written statement through the said advocate on his behalf, his daughter – 1st defendant did not file adoption memo adopting the written statement filed by him. Assuming to be that his evidence that the 1st defendant did not file an adoption memo, is true, but still his written statement clearly proves the claim of the plaintiff about the nature of the transaction. His evidence does not disclose that against his instructions, the written statement was drafted by Sri K.Subba Reddy, advocate. Therefore, from the above circumstances, it is quite clear that the suit transaction is true and the learned I Additional District Judge, Guntur has rightly decreed the suit for refund of the money instead of the relief of specific performance and the conduct of the defendants and their written statement clearly establishes the liability. Accordingly, I find no merit in the appeal. Therefore, the appeal is dismissed. 11. In the result, the appeal is dismissed with costs. ______________________________ N.R.L.NAGESWARA RAO, J 09th March, 2011 KSP