THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.58 of 2010 Date of Order: 26-03-2010 Between: 1.Tadi Gani Reddy and another ..Appellants and 1. Padala Bhaskara Reddy (died per L.Rs.) and others ..Respondents The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A.No.58 of 2010 Oral Judgment: This Second Appeal by the defendants is directed against the judgment and decree of the VI Additional District Judge (Fast Track Court), East Godavari, Rajahmundry dated 30-03-2009 whereunder the appeal filed by the appellants was partly allowed reducing the refund of earnest money of Rs.1,25,000/- instead of Rs.1,32,500/- as decreed by the Senior Civil Judge, Ramachandrapurm in O.S.No.159 of 2000 dated 21-06-2005 with interest at 6% per annum from the date of suit till the date of realization. For the sake of convenience, the parties are referred to as arrayed in the court below. The respondents/plaintiffs instituted the above suit for specific performance of agreement of sale dated 29-08-2000 or in the alternative pass a decree for recovery of an amount of Rs.1,32,500/- with future interest from 29-11-2000 by creating a charge over the plaint schedule property. It was pleaded that in order to discharge joint family debts, the defendants offered to sell the plaint schedule property, which was acquired by the 1st defendant under a registered partition deed dated 27-06-2000 for Rs.1,35,000/-. The 1st plaintiff having agreed for the same paid Rs.1,25,000/- towards advance and obtained an agreement of sale dated 29-08-2000, wherein it was agreed that the sale deed will be executed after receipt of balance amount of Rs.10,000/- on or before 29-11-2000. When the defendants failed to execute the sale deed, a notice under Ex.A2, dated 20-11-2000 was issued for which the defendants sent a reply under Ex.A4 with untenable pleas. The plaintiffs are always ready and willing to perform their part of contract. The defendants 1 and 2 filed written statement denying the material averments and their executing agreement of sale contending that they are not at all aware of the plaintiff and there is no necessity to sell the suit schedule property and the 1st defendant is having 1/3rd share in the suit schedule property. Out of three shares, the other two shares belong to his daughter and son which is an ancestral property in which the children of the defendants are having co-parcenary rights. Therefore, the defendants have no capacity to convey the property to any body. It is stated that the mother and father of the 2nd defendant indebted to third parties, who harassed them to discharge the amount. In that connection father in law and mother in law of the 1st defendant obtained 20 pronotes and other signed papers as security to the debts contacted by them. The plaintiff No.1 perhaps used the said signed white papers and filed the suit against the defendants. Therefore, the said agreement of sale is not genuine and fabricated one. During the pendency of the suit the 1st plaintiff died and his legal representatives are brought on record. On trial court framing the necessary issues for trial, the 2nd plaintiff herself was examined as P.W.1 and three more witnesses, P.Ws.2 to 4, were examined and marked Exs.A1 to A4. On behalf of the defendants, D.Ws.1 and 2 were examined and marked Exs.B1 to B5. The learned Senior Civil Judge by impugned judgment dated 21-06-2005 decreed the suit of the plaintiffs for Rs.1,32,500/- with interest at 6% per annum from the date of suit till the date of realization on the principal sum of Rs.1,25,000/- by creating a charge to the extent of 1/3rd in the plaint schedule property of defendant No.1. On appeal being filed the lower appellate Court after re- appreciating the entire evidence held that Ex.A1—sale agreement was executed on Rs.2/- stamp paper and later stamp duty penalty was paid. Considering the evidence of D.W.1 where he deposed that he cannot sell the property, as his children filed a case before the Lok Adalat, Ramachandrapuram for partition, and he borrowed an amount of Rs.59,000/- from one Sabbella Subbareddy of Anaparthi by depositing partition deed; his father in law and mother in law indebted to so many persons, when the third parties harassed to discharge the amounts with higher rate of interest, his in laws obtained his signatures and thumb impressions for security to the debts contacted by his in laws, perhaps those papers were pressed into service. The appellate Court has not accepted the evidence of D.Ws.1 and 2 that they never received Rs.1,25,000/- from the plaintiff towards part of sale consideration and never executed Ex.A1—sale agreement. The evidence of P.Ws.2 and 3—scribe and attestor of Ex.A1 clearly establish that the defendants entered into an agreement of sale. Ex.A1 reveals that the defendants received Rs.1,25,000/- towards part of consideration. The evidence of P.Ws.1 to 4 do not show that they agreed to pay interest on Rs.1,25,000/- in default of execution of sale agreement and accordingly modified the decree for Rs.1,25,000/-. Heard Mr.S.Subba Reddy, learned counsel for the appellant. Admittedly, the in laws of the 1st defendant indebted to various persons and as security to the debts incurred by them, the 1st defendant signed on promissory notes and also white papers with thumb marks and the same were pressed into service. If that be the case, the entire burden rests upon the 1st defendant to establish that he is in the habit of signing blank while papers, which are pressed into service, but the defendants failed to do so. The evidence of P.Ws.2 and 3—scribe and attestor of Ex.A1— agreement clearly establish that the defendants received Rs.1,25,000/- towards part of sale consideration and deal was settled for Rs.1,35,000/-. In view of the same, the concurrent findings recorded by the courts below are on appreciation of oral and documentary evidence which do not give rise to any question of law, much less substantial question of law, for admitting the Second Appeal. In the result, Second Appeal is dismissed at the stage of admission. _________________ A.GOPAL REDDY, J. 26-03-2010 Murthy