HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.772 of 2010 Between: Reddy Veera Manikya Satyavathi. … Appellant And Palla Appayyamma and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL No.772 OF 2010 JUDGMENT:- This Second appeal by the appellant/3rd plaintiff aggrieved by the decree and judgment of the Senior Civil Judge, Peddapuram, dated 03.02.2009, in A.S.No.8 of 1996, whereby the appeal filed by the 7th defendant against the decree and judgment of the District Munsif’s Court, Prathipadu in O.S.No.13 of 1998, dated 16.02.1996, decreeing the suit of the plaintiffs for specific performance of the agreement of sale, dated 04.07.1971, has been allowed. The 1st plaintiff filed the above suit for specific performance of the agreement of sale, dated 04.07.1971, in respect of the suit schedule property to an extent of Ac.1-75 cents in survey Nos.324 & 325 of J.Annavaram village in Yeleswaram Mandal. The 1st Defendant agreed to sell the schedule property to the 1st plaintiff for a sale consideration of Rs.4,600/- and accordingly executed a possessory agreement of sale, dated 04.07.1971, agreeing to execute the registered sale deed along with his sons. Subsequently, on measurements the correct survey numbers of the schedule land was shown. Hence the 1st defendant executed a Khararnama, dated 10.07.1971, mentioning the correct description of the schedule property with boundaries, in continuation of the earlier possessory agreement of sale, dated 04.07.1971. The 1st Defendant also informed the 1st plaintiff that there is a mortgage debt on the schedule land in the Land Mortgage Bank, Prathipadu and that after clearing the said debt, he will execute the regular sale deed. On the death of the 1st plaintiff, the 2nd plaintiff, being the daughter of the 1st plaintiff, was impleaded as his legal representative. Subsequently, the 2nd plaintiff died. On her death, the 3rd plaintiff, being the daughter of the 2nd plaintiff, was impleaded as her legal representative. According to the plaint averments, ever since the date of agreement of sale, the 1st plaintiff was in possession of the schedule land and after her death the 2nd plaintiff has been in possession and after the death of the 2nd plaintiff, the 3rd plaintiff has been in possession and enjoyment of the same, by paying the land revenue. The schedule land with other land was acquired by the Government for the purpose of Yeleru Reservoir Project as per the notification published in Eenadu Newspaper on 02.10.1987 and subsequently the 1st plaintiff learnt that the 1st to 6th defendants have collusively executed the sale deed in favour of the 7th defendant about two years back in respect of some land, which included a part of the plaint schedule land. The 7th defendant, who is aware of the agreement of sale and the Khararnama executed by defendant No.1 in favour of the plaintiffs, is not a bona fide purchaser and, therefore, the plaintiffs apprehend that the defendants are trying to interfere with the schedule property. Hence, the plaintiffs seek specific performance of the agreement of sale, dated 04.07.1971. The 1st Defendant filed written statement denying his entering into an agreement of sale; executing of Khararnama; delivery of the property in favour of the plaintiffs; and the plaintiffs’ possession and enjoyment over the schedule property. It is further submitted that the 1st defendant borrowed loan from the Land Mortgage Bank, Prathipadu, giving the schedule land as security. In or about 1971, the bank officials threatened him to realize the loan by sale of the schedule land and at that time the village officers have advised him to create a document in favour of a third person with title and possession and they have obtained the thumb mark of the 1st defendant on a paper to save the property and thereafter at the connivance of the village officers, the alleged suit agreement of sale was created, which he never executed. The plaintiffs are distant relatives of the defendants and the Khararnama Ex.A2 is a rank forgery, which was created and engineered this speculative litigation. The 1st defendant, who has been in continuous possession of the said property, sold Ac.1-00 of land to the 7th defendant in the year 1981 under Ex.B12. The 2nd to 6th defendants filed a memo adopting the written statement of the 1st defendant. The 7th defendant filed a separate written statement traversing the plaint allegations about the 1st defendant entering into the agreement of sale and the Khararnama. It is submitted by the 7th defendant, that he has been in peaceful possession and enjoyment of the schedule land from the date of sale. In fact, the 1st defendant offered to sell Ac.1-58 cents on the northern side out of Ac.5-30 cents in survey No.284/2 and Ac.0-88 cents of land on the southern side out of Ac.1-50 cents in survey No.324/2A, and Ac.0-12 cents of land on the eastern side of land out of Ac.1-96 cents in survey No.325/2 of J.Annavaram village for discharge of sundry debts, family expenses and for agricultural investment etc. The 7th Defendant offered highest price for the same, which was accepted by the 1st defendant. On receipt of the valuable sale consideration of Rs.6,960/- the 1st defendant and his sons executed the sale deed, dated 19.12.1981, for the above land in his favour and he has no notice of the alleged suit agreement of sale, dated 04.07.1971, and the Khararnama, dated 10.07.1971, and they are bona fide purchasers for valuable consideration of the schedule land. The 7th defendant was put in possession of the schedule land on 19.12.1981 and since then he has been in peaceful possession and enjoyment of the same. On the above rival pleadings, the trial court framed necessary issues for trial. On filing I.A.No.449 of 1990, dated 20.03.1991, the plaintiffs got amended the boundaries of the plaint schedule, which has become final. The learned trial court after considering the oral and documentary evidence was of the view that the suit schedule property, which was got amended through I.A.No.449 of 1990, is correct and the suit agreement of sale is true and valid, as per the evidence of P.Ws.1 to 3. On the issue as to whether the plaintiffs are entitled for specific performance, it was held that the plaintiffs established their possession over the suit schedule property through the cross-examination of D.W.1 that the 1st and 7th defendants are the residents of the same locality. Therefore, at any stretch of imagination, it cannot be said that the 7th defendant has no notice about the possession and therefore, he is not a bona fide purchaser for valuable consideration and the plaintiffs are entitled for specific performance. Holding so, the trial court decreed the suit of the plaintiffs. Aggrieved by the same, the 7th defendant preferred appeal. During the pendency of the appeal, the 7th defendant died and his legal representatives were brought on record, as appellant Nos.2 to 9, as per the orders in I.A.No.463 of 2006, dated 23.08.2006. The lower appellate court on point No.1, as to whether the suit schedule property is correct, after analyzing the evidence adduced by the parties, held that the plaintiffs failed to prove the correctness of their possession to the extent of the suit schedule land. Further there is no reason for non-mentioning of patta number or boundaries of the alleged extent of Ac.1-75 cents agreed to be sold in Ex.A1-agreement of sale, dated 04.07.1971. The plaintiffs have absolutely no explanation for non-mentioning of the patta number and also the alleged survey No.325 in which part of the land out of Ac.1-75 cents is situated and also the boundaries of the alleged Ac.1-75 cents of land in Ex.A1. Further the boundaries mentioned in Ex.A2 are also not correct. The defendants have denied the execution of Ex.A2 and on the other hand it is contended that Ex.A2 is a forged document. The plaintiffs do not know the exact location and correct description of the plaint schedule property till the date of filing of I.A.No.449 of 1990 to amend the plaint schedule. Plaintiff No.2, who examined herself as P.W.1 and who is not a party to Exs.A1 and A2 documents, also admitted that two or three days after Ex.A1, he was informed that there is no mention of boundaries in Ex.A1 and also part of the land is covered by survey No.325 of the village. On point Nos.2 and 3, as to whether Exs.A1 and A2 are true, valid and binding on the defendants, it was held that when the defendants have denied about the execution of agreement of sale-Ex.A1 and Khararnama-Ex.A2, the initial burden lies upon the plaintiffs to prove the execution of Exs.A1 and A2 by the 1st defendant. Plaintiff No.2, who was examined as P.W.1, admitted in the cross-examination that she cannot say the proposed sale terms under Ex.A1 and she does not know that the boundaries of the plaint schedule land was wrongly noted till she has engaged the advocate in the suit, which also probablises that she was not present at the time of scribing the agreement. P.W.2, Village Karnam, who scribed Ex.A1, also signed Exs.X1 and X2. Ex.X1 is the delivery receipt, dated 07.08.1980, showing the delivery of the plaint schedule land and other lands of defendant No.1 by the Court to the Co-operative Agricultural Development Bank, Prathipadu in pursuance of the decree passed under the Co-operative Societies Act, Ex.X2 Amin’s report, dated 07.08.1980, also shows the delivery of the plaint schedule land and other properties by the court Amin to the Cooperative Agricultural Development Bank, Prahipadu and Ex.X3 the original delivery warrant issued by the District Munsif, Prathipadu to deliver the plaint schedule land and other properties to the Co-operative Agricultural Development Bank, Prathipadu. Further, the 1st Plaintiff in the suit is a party to Exs.X2 and X3 besides the 1st and 7th defendants and J.Surya Rao. Therefore, the plaintiffs are aware of Exs.X1 to X3 proceedings even by 07.08.1980 and the property was delivered, but they have not raised their little finger nor lodged any claim petition on the execution of the decree by the Bank. P.W.1 admitted in the cross-examination that during the lifetime of the 1st plaintiff, she never issued any notice demanding the defendants to execute the sale deed in pursuance of Exs.A1 and A2. When the 1st defendant discharged the debt due to the Land Mortgage Bank by the date of Ex.B9 sale deed, dated 19.12.1991, on which date the plaint schedule land was delivered possession to defendant No.7 on receipt of the sale consideration and which fact is also known to the plaintiffs since the 1st plaintiff is also a party to Exs.X1 to X3 and Ex.B16 which are prior proceedings of Ex.B1, the plaintiffs failed to move their little finger to take necessary action in pursuance of Exs.A1 and A2 within the stipulated period of three years of limitation from the date of Ex.B9 and, therefore, the suit as such is barred by limitation. The lower appellate court after critically analyzing all the aspects of the case and the evidence on record, rightly allowed the appeal dismissing the suit of the plaintiffs. From the entire pleadings, it is clear that the plaintiffs have never pleaded their readiness and willingness for obtaining the sale deed within the stipulated period of three years from the date of Ex.A1. When the plaintiffs were in possession of the property, as per the agreement of sale-Ex.A1 definitely they would have lodged a claim petition resisting the delivery of possession of the property by the Court Amin to Co- operative Agricultural Bank, Prathipadu under Ex.X3 as per the orders in E.A.No.202 of 1980 under Ex.B16. Further, the 1st plaintiff who signed Exs.X1 to X3 about the delivery of the property will not keep quiet, if he has any right in the suit schedule property. Hence, the plaintiffs have not approached the Court with clean hands and the suit is barred by limitation. Further, as per the plaintiffs’ own averments, the part of the suit schedule property was acquired by the Government for the purpose of Yeleru Reservoir Project, by issuing notification under the provisions of the Land Acquisition Act compensation paid to defendant Nos.1 to 7 in L.A.O.P.No.32 of 1998, which clearly goes to show that they are not in possession of the schedule property when it was taken possession by the Government. In view of the same, the decree and judgment passed by the lower appellate court in allowing the appeal, dismissing the suit, on appreciation of the evidence, do not give raise to any question of law much less substantial question of law to be decided in this second appeal. The Second Appeal fails and is, accordingly, dismissed. There shall be no order as to costs. _________________ A.GOPAL REDDY, J 27th August 2010 lmv