HONOURABLE SRI JUSTICE P. SWAROOP REDDY APPEAL SUIT Nos.3092 AND 3113 OF 1990 COMMON JUDGMENT: Since both these appeals arises out of a common judgment and the parties in both the appeals and subject matter is one and the same, they are being disposed of by this common judgment. 2. Both these appeals are filed against the common judgment in O.S. No.64 of 1982 and O.S. No.96 of 1982 dated 16-12-1989 passed by the learned II Additional Subordinate Judge, Kakinada. 3. A.S. No.3092 of 1990 is filed against the judgment in O.S. No.96 of 1982 and A.S. No.3113 of 1990 is filed against the judgment in O.S. No.64 of 1982 by one Datla Suryanaryana Raju, who is defendant in O.S. No.96 of 1982 and plaintiff in O.S. No.64 of 1982. 4. Datla Suryanarayana Raju filed O.S. No.64 of 1982 seeking recovery of possession of the suit schedule property after evicting the defendants therein viz., Sagi Venkata Ramaraju and Sagi Subbaraju and for past and future profits. 5. Sagi Subbaraju, who is defendant No.2 in O.S. No.64 of 1982, filed O.S. No.96 of 1982 seeking specific performance of agreement of sale dated 11-05-1979 directing the defendant therein viz., Datla Suryanarayana Raju, who is plaintiff in O.S. No.64 of 1982, to execute registered sale deed at the cost of the plaintiff in respect of the suit schedule property in terms of the agreement of sale and in default to execute the same by the Court. 6. Property in dispute i.e., suit schedule property in both the suits is one and the same, as such, the same is hereinafter referred to as ‘suit property.’ 7. The case of the plaintiff in O.S. No.96 of 1982, which is filed for specific performance of agreement of sale dated 11-05-1979, Ex.A- 1, in respect of the suit property, is that he purchased the suit property under Ex.A-1 and he was in possession of the same. On 09-05-1979, his marriage was performed, he was taken in adoption by PW.2 Sagi Venkataramaraju, who is defendant No.1 in O.S. No.64 of 1982. On the same day, plaintiff’s marriage, adoption and upanayanam were performed. There was a registered adoption deed and on the very same day negotiations for purchase of the suit property took place and Ex.A-1 was executed by the defendant on 11-05-1979 and he paid an amount of Rs.1,45,000/- out of the total sale consideration of Rs.1,50,000/- and the balance of Rs.5,000/- was to be paid at the time of registration. According to him, he paid Rs.30,000/- from the amount of Sthreedhana of his wife, whom he married just two days earlier to Ex.A-1, Rs.40,000/- out of the cash gifts received at the time of marriage and remaining Rs.75,000/- by borrowing the same from his adoptive father PW.2. Possession of the suit property was delivered to him by PW.10 Kakarlapudi Butchiraju, who was managing the same. 8. The case of the defendant in O.S. No.96 of 1982 is that the suit property was never sold by him in favour of the plaintiff and that he gave his singed blank white papers and signed blank stamp papers to PW.10, who was managing the suit property, and by using the same, Ex.A-1 agreement of sale was concocted. The contention of the plaintiff that he purchased the suit property within two days of the marriage and that he had capacity to pay such huge consideration at that time are not at all acceptable and the circumstances of starting the transaction on the date of marriage and completing the same within two days of the marriage and the manner of raising money for consideration would prima facie show that the transaction is false and concocted one. It is also the contention of the defendant that the transaction is hit by Section 17(1) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short “Land Reforms Act”) read with 23(1) of the Indian Contracts Act. 9. The other suit in O.S. No.64 of 1982 was filed by the defendant in O.S. No.96 of 1982 for recovery of possession of the suit property from the defendants therein of whom defendant No.2 is plaintiff in O.S. No.96 of 1982 and defendant No.1 is adoptive father of defendant No.2. 10. Based on the pleadings of both the parties, the following issues were framed in O.S. No.96 of 1982 by the trial Court for trial: “ 1. Whether the suit agreement of sale is true ? 2. Whether the defendant is indebted to Sagi Subhadrayamma in an amount of Rs.36,900/- ? 3. Whether the defendant was indebted on a pronote to Sagi Venkateswara Raju an amount of Rs.32,450/- ? 4. Whether the plaintiff the above amounts as per villa of defendant to Sagi Saubhadrayamma garu and Sagi Venkateswara Raju ? 5. Whether the plaintiff paid Rs.75,640/- to defendant under suit agreement of sale ? 6. Whether Kakarlapudi Butchiraju was a tenant under the defendant ? 7. Whether Kakarlapudi Butchiraju delivered possession of suit land to plaintiff on 12.5.1979 as per the direction of defendant under suit agreement for sale ? 8. Whether the plaintiff is entitled to specific performance of suit agreement of sale ? 9. To what relief ?” 11. Based on the pleadings of both the parties, the following issues were framed in O.S. No.64 of 1982 by the trial Court for trial: “1. Whether agreement of sale in favour of D.2 is forged as blank paper containing the signature of plaintiff ? 2. Whether the plaintiff did not deliver possession of suit land as stated in the agreement of sale ? 3. Whether the plaintiff did not receive the part of sale consideration as stated in the agreement ? 4. Whether the plaintiff is entitled to recover possession of suit property ? 5. Whether defendants are liable to pay past profits as prayed ? 6. Whether plaintiff is entitled to future profits ? 7. To what relief ?” 12. On the basis of a memo, both the suits were clubbed together and joint trial was held in both the suits and evidence was recorded in O.S. No.96 of 1982. Hence, for the sake of convenience, the parties are referred to as arrayed in O.S. No.96 of 1982. 13. On behalf of the plaintiff, PWs.1 to 12 were examined and Exs.A-1 to A-34 were marked. On behalf of the defendant, DWs.1 and 2 were examined and Exs.B-1 to B-4 were marked. Ex.X-1 was also marked. 14. Based on the material on record, learned trail judge decreed the suit in O.S. No.96 of 1982 for specific performance and dismissed the suit in O.S. No.64 of 1982 for recovery of possession by the impugned common judgment. Aggrieved of the same, both these appeals are filed. 15. Learned counsel for the defendant, appellant in both the appeals, contends that the entire transaction looks unnatural and Ex.A- 1 agreement of sale was concocted on signed blank white papers given by the defendant for the purpose of managing the suit property and that transaction is hit by the provisions of Land Reforms Act. 16. On the other hand, learned counsel for the plaintiff, respondent in both the appeals, contends that defendant has admitted his signature on Ex.A-1, as such, his contention that Ex.A-1 is concocted on signed blank white papers, is incorrect. He further contends that in fact, defendant has contended that he has given signed blank white papers as well as signed blank stamp papers and in case plaintiff wanted a concocted agreement of sale, he could as well done the same on the signed blank stamp papers instead of signed blank white papers and there was no need for him to do the same on white papers. 17. The above contention of the plaintiff can be answered here itself holding that that there might not have been chance for concocting the document on stamp papers as it is not on record as to what denomination of signed blank stamp papers were available so that the plaintiff could concoct Ex.A-1 agreement of sale on such stamp papers. 18. Based on the rival contentions, the following two questions would arise for consideration: 1. Whether Ex.A-1 agreement of sale dated 11-05-1979 is a true document ? 2. Whether the transaction is hit by Section 17(1) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 read with 23(1) of the Indian Contracts Act ? Question No.1: 19. Coming to the question of Ex.A-1 agreement of sale being executed on 11-05-1979, it reads that owner of the property i.e., defendant purchased the same from PW.1, Venkatarama Raju, and was getting it cultivated through one Butchi Raju, PW.10, and he agreed to sell it to the plaintiff for Rs.1,50,000/- and executed Ex.A-1 agreement of sale on 11-05-1979. On the date of execution of Ex.A-1 itself, Butchi Raju was requested to deliver possession of the property to the plaintiff. Towards sale consideration, plaintiff paid Rs.36,900/- to plaintiff’s adoptive mother to whom defendant was due that amount, Rs.32,450/- was paid, towards principal and interest, to one Venkateswara Raju to whom defendant was due a debt of Rs.25,000/- and interest thereon, and Rs.75,640/- was paid in cash. Thus, a total amount of Rs.1,45,000/- was paid by the plaintiff to the defendant and the balance of Rs.5,000/- was to be paid after completion of the land ceiling proceedings of the parties. 20. Plaintiff in his evidence as PW.1 has spoken about Ex.A-1. He was taken in adoption on 09-05-1979 by PW.2 Sagi Venkatarama Raju. Upanayanam, marriage and adoption were performed on the same day i.e., on 09-05-1979. Defendant attended adoption, upanayanam and marriage ceremonies. Defendant, who earlier purchased the suit property from the adoptive father (PW.2) of the plaintiff, agreed to sell the same to the plaintiff for Rs.1,50,000/- and on 11-05-1979 Ex.A-1 agreement of sale coupled with delivery of possession was executed. The suit was property being cultivated by defendant No.1 through Butchi Raju, PW.10, who attended the functions of adoption, upanayanam and marriage of the plaintiff, and he was directed by the defendant to deliver possession of the suit property to the plaintiff. He paid Rs.36,000/- to his adopted mother and obtained receipt for the same. The property was delivered to the plaintiff on 12-05-1979 under Ex.A-5 receipt. After adjustments, he paid Rs.76,500/- to the defendant. Thus, a total sale consideration of Rs.1,45,000/- was paid leaving balance of Rs.5,000/-. 21. It is the case of the plaintiff that on the very same date of execution of Ex.A-1 agreement of sale, defendant’s brother viz., Krishnamurthy Raju also executed an agreement of sale for his land in favour of plaintiff’s natural father. Possession of that land was also delivered to the natural father of the plaintiff by Butchi Raju, PW.10, on the same day i.e., on 12-05-1979 and a similar suit was also filed by his natural father against the brother of the defendant and that suit ended in compromise. 22. Evidence of PW.2, adoptive father of PW.2, is that earlier he owned the suit property and later he sold the same to the defendant and the defendant sold it to plaintiff under Ex.A-1. The bargain for Ex.A-1 transaction took place on the date of adoption of the plaintiff by him. Sale consideration was fixed at Rs.1,50,000/-. PW.10 attended the function and he was directed by the defendant to handover possession of the suit property to the plaintiff. It is stated that he lent Rs.75,000/- to the plaintiff for the purpose of Ex.A-1 transaction i.e., for payment of amount by the plaintiff to the defendant for the suit property. 23. According to the plaintiff’s case, Rs.30,000/- was collected from the bride from out of her Sthreedhana, Rs.40,000/- was out of the gifts that he got at the time of marriage and Rs.75,000/- was borrowed from his adoptive father, PW.2. Thus, Rs.1,45,000/- was paid. Out of Rs.1,45,000/-, plaintiff’s adoptive mother’s debt and one more debt was discharged and balance amount of Rs.75,640/- was borrowed from the adoptive father of the plaintiff as already referred. PW.2 stated that an amount of Rs.36,900/- was paid by the plaintiff to his (PW.2’s) wife i.e., adoptive mother of the plaintiff three days after execution of Ex.A-1 agreement of sale and not on the same day of execution. 24. The circumstance of Ex.A-1 transaction coming into force within three days of marriage of the plaintiff, looks unnatural. It becomes furthermore unnatural on account of the bargaining being on the very same day of marriage. According to the parties, marriage function itself has taken place during night after 10-30 PM. In such circumstances, perhaps there was very remote possibility of discussing about Ex.A-1 transaction for purchase of the suit property. Further circumstances of taking the amount of Rs.30,000/- from the bride within two days of the marriage for the purpose of payment for Ex.A-1 transaction and spending Rs.40,000/- received by way of cash gifts for purchase of property also, look unnatural. In fact, there is no material to show that such huge amount of Rs.40,000/- was received by way of gifts from various persons at the time of marriage in 1979. The circumstance of plaintiff borrowing a huge amount of Rs.75,000/- from his adoptive father, who adopted him just then also, looks unnatural and discharging the debt of the adoptive mother from out of that amount too looks further unnatural. 25. Thus, it is difficult to believe that during the time of marriage the transaction for purchase of the suit property was started and was completed within two days thereafter by borrowing money from adoptive father, discharging the debt of the adoptive mother, then borrowing further money from the newly wedded wife from out of her Sthreedhana and using Rs.40,000/- from the cash gifts received at the time of marriage, without there being any evidence to show that such huge amount was received by way of cash gifts at the time of marriage in 1979. 26. There is no dispute that Ex.A-1 bears signature of the defendant, his contention being that signed blank white papers were misused by the plaintiff, as already referred. A look at Ex,A-1 document, no doubt, would show that it was not one that was drafted on an already signed paper from the nature of writings and spacing on the paper. But, it could have been done by preparing a draft in advance for that purpose and taking proper care for writing on an already signed paper. 27. To prove execution of Ex.A-1, plaintiff got examined its scribe and attestors. PWs.3 and 4 are attestors. PW.3 has stated that he is one of the attestors of Ex.A-1 apart from Ex.A-9 receipt issued for payment of money. It is also stated that an amount of Rs.75,000/- and odd was paid by the plaintiff (PW.1) in his (PW.3) presence. This witness (PW.3) is closely related to the plaintiff and as contended by the learned counsel for the defendant, he (PW.3) is also related to the defendant. Even PW.4, who is one of the attestors to Ex.A-1, is also a relative to the plaintiff as well as the defendant. Hence, the fact of relationship works equally for both the parties. 28. PW.12 is the scribe of Ex.A-1. His evidence is that he was the scribe of Exs.A-1, A-7, A-8 and A-9 and the transactions under those documents took place in his presence. His cross-examination was deferred. Thereafter he never turned up for further cross- examination. He was the plaintiff’s witness and plaintiff never produced him again. No doubt, plaintiff has filed a petition and has taken permission for cross-examination of this witness, if he (PW.12) gives evidence against him. Obviously, said petition was filed as a preemptive measure to keep something on record and to get over the situation of the inability of plaintiff to produce the witness (PW.12). The learned trial Judge peculiarly found fault with the defendant for non-production of this witness for the purpose of cross-examination holding that he could have summoned him. The failure on the part of the plaintiff to produce the scribe (PW.12), the only independent witness for Ex.A-1 document, has to be taken adversely against the plaintiff. 29. Learned counsel for the plaintiff contends that when the defendant admits his signature on Ex.A-1, the contents of the same have to be treated to be admitted and not only that the plaintiff has examined attestors of Ex.A-1 i.e., PWs.3 and 4. To counter this argument, learned counsel for the defendant contends that Ex.B-4 is an affidavit given by Butchi Raju, PW.10, saying that the entire transaction is false. Plea of the plaintiff is that Ex.B-4 document was concocted on a signed blank paper, however his (PW.10) signature on Ex.B-4 is not disputed. If Ex.A-1 has to be accepted on account of the signature being admitted by the defendant, the same principle has to be applied to Ex.B-4, where signature of PW.10 is admitted. 30. Evidence of PW.10 is that when he attended the adoption function of plaintiff, defendant informed him that he sold the land to the plaintiff and asked him to show boundaries and deliver the land to PW.1. Perhaps, this evidence of PW.10 has to be treated as incorrect as by the time of adoption deed, transaction has not taken place and Ex.A-1 did not come into existence. He stated that he delivered the suit property to the plaintiff. He further stated that he never gave any affidavit in support of the contention of the defendant but defendant has obtained his signatures on signed blank papers for obtaining fertilizers in quota system. Thus, if Ex.B-4 has to be accepted, transaction under Ex.A-1 becomes false and defendant delivering possession of the suit property to the plaintiff through PW.10 through whom the suit property was alleged to have been delivered also cannot be accepted. In fact, there are suspicious circumstances, as already referred, with regard to Ex.A-1 coming into existence during the marriage, adoption and upanayanam ceremonies by taking money from the bride from out of the cash gifts and borrowing money from the adoptive father and discharging debts of adoptive mother and one Venkateswara Raju, whereas no such suspicious circumstances are existing with regard to Ex.B-4. 31. Learned counsel for the plaintiff contends that attestor of Ex.B-4 is not examined. But, the evidence of DW.1 is that one Sheshagiri Rao, Advocate, who attested Ex.B-4 document died four years back, as such, there is no possibility of examining that witness. 32. In these circumstances, where Ex.A-1 is not at all inspiring any confidence on account of suspicious circumstances referred above and on account of non-examination of scribe (PW.12) of Ex.A-1 document who disappeared from the witness box after completion of his chief-examination, on account of Ex.B-4, it is not at all safe to rely on Ex.A-1. Hence, I am not inclined to accept that Ex.A- 1 is executed by the defendant. 33. Accordingly, question No.1 is answered in favour of the defendant and against the plaintiff. Question No.2: 34. Coming to the next question that the transaction being hit by Section 17(1) of the Land Reforms Act, even according to the document, there is no dispute that land ceiling proceedings were pending by the date of Ex.A-1 document. Though the proceedings were completed in the primary and appellate Tribunals, they were pending in High Court. It is the evidence of the defendant as DW.1 that his holding was found to be in excess of ceiling area and he retained the land under ceiling limit and surrendered his ancestral land. Section 17(1) of the Land Reforms Act prohibits alienation of excess land and that applies to execution of a decree also even for specific performance of agreement. There is no dispute of defendant having excess holdings and surrendering his own land and in fact even Ex.A-1 shows that the proceedings under Land Reforms Act were still pending at some stage. Such being the case, it has to be accepted that the transaction under Ex.A-1 is hit by the provisions of the Land Reforms Act. 35. Accordingly, question No.2 is also answered in favour of the defendant and against the plaintiff. 36. In view of my findings on above two questions, both the appeals are liable to be allowed, as execution of Ex.A-1 is not proved and in the circumstances the discretionary relief of specific performance cannot be granted. 37. Accordingly, both the Appeal Suits are allowed. The suit in O.S. No.64 of 1982 is decreed with costs through out and the suit in O.S. No.96 of 1982 is dismissed with costs through out. ______________________ P. SWAROOP REDDY, J September 7, 2010. PV