HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.46 of 2004 Date:28-12-2011 Between: Bojjala Ramakrishna Reddy …Appellant And Modugula Subbaiah …Respondent HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.46 of 2004 Date:28-12-2011 JUDGMENT: This second appeal is directed against the decree and judgment dated 11.09.2003 passed by the Senior Civil Judge, Srikalahasthi in A.S.No.7 of 2002 reversing the judgment and decree dated 20.12.2001 passed by the Principal District Munsiff, Srikalahasthi in O.S.No.179 of 1999. 2. The plaintiff in O.S.No.179 of 1999 on the file of the Court of Principal Junior Civil Judge, Srikalahasthi filed the second appeal. He filed the suit for specific performance of agreement to sell, dated 12.08.1988 said to have been executed by the defendant in his favour agreeing to sell the plaint schedule property for a sum of rs.18,750/-. The trial Court decreed the suit. 3. In the first appeal filed therefrom, in A.S.No.7 of 2002, the Senior Civil Judge, Srikalahasthi reversed the judgment and decree dated 20.12.2001 passed by the trial Court and dismissed the suit for specific performance of agreement to sell dated 12.08.1988 filed by the plaintiff. Feeling aggrieved, the plaintiff preferred the present second appeal. 4. The parties will be referred to for convenience sake as ‘the plaintiff and the defendant.’ 5. The brief facts giving rise for filing the second appeal may be stated as follows: The case of the plaintiff is that he purchased the suit schedule property for Rs.18,750/- from the defendant under an agreement to sell dated 12.08.1988 and paid the entire sale consideration to the defendant and took possession of the property on the date of agreement and the defendant agreed to execute a registered sale deed as and when demanded by him. It is further averred in the plaint that the plaintiff has constructed a sapara for his residential purpose on the western side of the suit property and was using the remaining site for his domestic purposes. The plaintiff dug a bore-well on the north- east of the suit property and installed a motor for drinking purpose. The defendant with a mala fide intention filed suit O.S.No.13 of 1991 on the file of the District Munsiff, Srikalahasthi for grant of declaration of title, permanent injunction and recovery of possession of the suit property and the plaintiff herein filed written statement denying the averments made by the defendant in OS No.13 of 1991. It is contended by the plaintiff in the earlier suit that the suit schedule property was purchased by him on 12.08.1988 under an agreement of sale and was in possession and enjoyment and the defendant was examined as PW-1 on 21.3.1995 in the said suit, denied the agreement of sale dated 12.08.1988 in favour of the plaintiff herein and during the evidence, the plaintiff as DW-1 in the said suit, sought to mark the agreement of sale, but the defendant objected regarding the admissibility as the document was not registered and therefore, it was not marked. It is further averred that subsequently, OS No.13 of 1991 was decreed with costs. The plaintiff filed appeal in AS No.18 of 1996 on the file of the Subordinate Judge, Srikalahasthi. The plaintiff took return of the agreement of sale from O.S.No.13 of 1991 and filed the present suit for specific performance of contract. The plaintiff is ready and willing to perform his part of contract but, the defendant did not come forward to execute a registered sale deed. 6. The defendant filed written statement denying the plaint averments including the sale of the property under an agreement of sale dated 12.08.1988. It is denied by the defendant that the plaintiff raised a sapara and dug bore-well and installed a motor. It is further contended that the plaintiff and one Krishnamma took the suit schedule property on a monthly rent from the defendant because their house was got vacated by one Pallamala Jayarami Reddy and they became tenants and were paying rents to the defendant. The plaintiff borrowed Rs.10,000/- from the defendant and executed a pro-note in favour of the defendant. The plaintiff and Krishnamma are living as wife and husband evaded to pay the rents and refused to pay the pro- note debt to the defendant. Therefore, the defendant filed O.S.No.13 of 1991 on the file of the Junior Civil Judge, Srikalahasthi for declaration of title, permanent injunction and delivery of possession of the suit schedule property and the suit was decreed in his favour. Aggrieved by the same, the plaintiff preferred an appeal AS No.18 of 1996 and the same was dismissed. It is further contended that the plaintiff never filed the alleged agreement of sale in O.S.No.13 of 1991 and he never sold away the suit schedule property and he had not paid the debt under the pro-note and that the sale agreement dated 12.08.1988 was a created and forged document and the defendant never executed any agreement and received the consideration and delivered possession to the plaintiff. 7. Before the trial Court, PWs.1 to 4 were examined and Exs.A-1 to A-3 were marked on behalf of the plaintiff. On behalf of the defendant, DW-1 was examined and Exs.B-1and B-2 were marked. 8. In respect of the very same property which is the subject matter of OS No.179 of 1999 on the file of the Principal District Munsiff, Srikalahasthi, the defendant filed OS No.13 of 1991 seeking reliefs of declaration of title, permanent injunction and recovery of possession. The said suit was decreed. The plaintiff in the present case who is the defendant therein preferred AS No.18 of 1996 against the said decree and judgment and the appeal was also dismissed confirming the judgment and decree passed by the trial Court in OS NO.13 of 1991. The plaintiff in the present case filed second appeal No.983 of 1999 which is now pending before this Court. 9. Admittedly, in the said suit also the plaintiff filed the agreement to sell dated 12.08.1988 allegedly executed by the defendant to disprove the contention of the defendant. But, the said document was not admitted by the trial Court having regard to an objection raised by the plaintiff as to its admissibility on the ground that the requisite stamp duty and penalty was not paid by the plaintiff. The plaintiff, however, subsequently obtained the return of the said agreement, got it impounded by the Collector and then basing on the said agreement to sell, instituted the present suit for specific performance of the contract embodied in the said agreement to sell. It is also crucial to mention in this context that in OS No.13 of 1991 the agreement to sell dated 12.08.1988 which is the suit document in the present suit was confronted to the present plaintiff during the course of his cross- examination. But, in the present case, while the defendant was cross examined and when the counsel for the plaintiff drew his attention to the signature on the agreement, he did not specifically deny that the signature therein is not that of him. He only stated that he cannot say whether it is his signature or not. In the written statement and vakalat, he stated that the signatures therein were not of his signatures. Thus, the defendant was not specific about his own signatures in the document. Basing on the evidence of the defendant on this aspect, the learned trial Court rightly drew an inference against the plea taken by the defendant that the plaintiff was only a tenant of the schedule mentioned property and that he was continuing in possession of the property as tenant in an extent of one cent of the site where a small house is situate and that the remaining 15 cents of land is in his possession and he has been raising vegetable and flower plants in the said vacant land. The contention of the defendant was that the monthly rent on which the defendant took the house on rent @ Rs.100/- per month, the plaintiff paid the rent only for a period of four months and then committed default. All these facts the defendant could not be able to demonstrate before the learned trial Court by adducing any cogent evidence. He mainly relied on the certified copy of the judgment in OS No.13 of 1991 and AS No.18 of 1996 which were marked as Exs:B-1 and B-2. 10. The plaintiff specifically contended in the suit that after obtaining possession of the suit land under the agreement to sell, dated 12.08.1988 from the defendant, he had sunk a bore-well by spending Rs.10,000/- and also constructed a shed in front of the house with asbestos sheets by spending Rs.10,000/- and that in the remaining vacant land, he has been raising vegetable plants. As to this, in the written statement, the defendant did not specifically mention that he built any house or dug a bore-well in an extent of 15 cents of land. He also admitted in the cross-examination that Ex.A-3 was confronted to him while he was being cross examined in OS NO.13 of 1991. Therefore, from this, it is obvious that the plaintiff never suppressed the agreement to sell dated 12.08.1988 basing on which he filed the present suit. Curiously the defendant stated in his evidence before the trial Court that he did not know as to whether he mentioned in the written statement that he leased out the entire schedule mentioned property or not. 11. A perusal of Ex.A-3 agreement to sell, dated 12.08.1988 clearly reveals that the defendant delivered possession of the suit property to the plaintiff under the agreement to sell on the date when it was executed after receiving the entire consideration. The facts, namely, that there is a thatched hut, bore-well, vegetable plants and flower plants in the vacant land are not in dispute. The commissioner who was appointed for the purpose of noting down the physical features also mentioned these facts in the report filed by him. PWs.3 and 4, scribe and one of the attestors of Ex.A-3 agreement to sell have categorically spoken to the fact of execution of Ex.A-3 agreement and delivery of possession and passing of consideration thereunder. The learned first appellate Court though these witnesses have spoken about the due execution of Ex.A-3 agreement indulged in going into minute details of the facts spoken to by PWs.3 and 4 disbelieved their evidence without assigning any convincing reasons. The plaintiff examined PW-2 to prove his possession and enjoyment of the schedule mentioned property. PW-2 deposed in his evidence that the plaintiff is residing in the schedule mentioned property after purchasing the same from the defendants. He had given the exact version of the consideration, extent of the property and the boundaries of the schedule mentioned property. However, PW-2 is not a direct witness to the execution of Ex.A-3 agreement. PW-3 stated in his evidence that he worked as village karanam of Bokkisampalem village, he is the scribe of Ex.A-3 agreement. He further stated that the consideration was not passed in his presence under Ex.A-3 but when he asked the defendant, he told him that he received the consideration from the plaintiff. From the evidence of PW-3, the first appellate Court took the view that since the consideration was not passed in the presence of PW-3, his evidence is of no use to the plaintiff. The approach of the learned first appellate Court in my view is totally erroneous. It is not always necessary that the scribe of the document should actually witness the passing of the consideration and it is enough that the party receiving the consideration admits the same before the scribe about the said fact. PW-4 one of the attesting witnesses stated in his evidence that the plaintiff paid the consideration to the defendant in his presence and another attesting witness, one Gopal. He also further deposed that since the date of Ex.A-3, the plaintiff has been in possession and enjoyment of the suit schedule property. The learned first appellate Court also disbelieved the evidence of PW-3, the scribe of Ex.A-3 agreement on the ground that he is not a licensed document writer. The learned first appellate Court by minutely going into details of each and every fact spoken to by PWs.2 to 4 disbelieved their evidence on the reasons which are unfounded and irrational. 12. Further, the learned first appellate Court also did not specify any valid reasons as to why it took a different view to that of the trial Court. It only stated that the trial Court did not appreciate the evidence in a proper way. In fact, the reasons assigned by the learned first appellate Court are contrary to the evidence on record and perverse in reversing the judgment of the learned trial Court and this court while exercising jurisdiction under Section 100 of CPC can interfere with such findings recorded by the learned first appellate Court. 13. For the reasons aforementioned, the findings recorded by the first appellate Court reversing the well reasoned judgment of the trial Court being perverse and contrary to the evidence on record are hereby set aside. The decree and judgment passed by the first appellate Court therefore is accordingly set aside in the second appeal confirming the judgment and decree passed by the trial Court. The second appeal, therefore, succeeds and the same is allowed. There shall be no order as to costs. _______________ Date:28.12.2011. R. KANTHA RAO, J ccm HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.46 of 2004 Date:28-12-2011