*HON’BLE SRI JUSTICE P.S. NARAYANA +A.S. No.2194 of 1999 and A.S. No.3091 of 1999 % 21-6- 2010 A.S. No.2194 of 1999 Between: #Neelam Williams ... Appellant/ 3rd defendant And $1. Mohammad Iqbal Pasha and 6 others. ...Respondents * * * A.S. No.3091 of 1999 Between: #Neelam Williams ...Appellant/ Plaintiff And $1. Md. Ikbal Pasha and 5 others. ..Respondents/ Defendants * * * !Counsel for the appellant: Sri K.V. Satyanarayana Counsel for respondent No.2: Sri D.V.N. Acharya Counsel for respondent Nos.1, 3 & 4: Sri V.L.N. Gopala Krishna Murthy <Gist: >Head Note: ?Cases referred: 1. 2005 (2) ALD 631 2. 1990 (2) LS (SC) 9 3. 1998 (6) ALD 682 4. 1998 (6) ALT 555 5. AIR 1968 SC 1028 6. AIR 1973 SC 2256 7. AIR 2006 AP 212 8. 2007 (4) ALD 137 HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.2194 of 1999 and A.S. No.3091 of 1999 Date: June 21, 2010 A.S. No.2194 of 1999 Between: Neelam Williams ... Appellant/ 3rd defendant And 1. Mohammad Iqbal Pasha and 6 others. ...Respondents * * * A.S. No.3091 of 1999 Between: Neelam Williams ...Appellant/ Plaintiff And 1. Md. Ikbal Pasha and 5 others. ..Respondents/ Defendants * * * HON’BLE SRI JUSTICE P.S. NARAYANA A.S. No.2194 of 1999 and A.S. No.3091 of 1999 COMMON JUDGMENT: Short episode: The learned Additional Senior Civil Judge at Eluru, disposed of O.S. No.149 of 1990 and O.S. No.135 of 1993 by a common judgment dated 09th day of June 1999. O.S. No.149 of 1990 was filed praying for the relief of specific performance of an oral agreement of sale. O.S. No.135 of 1993 was filed for eviction of tenants and for recovery of rents or damages for use and occupation or in the alternative for recovery of possession and mesne profits or damages for use and occupation in relation to the plaint schedule property. 2. The learned Additional Senior Civil Judge at Eluru, in the light of the respective pleadings of the parties having settled the issues, recorded common evidence in O.S. No.149 of 1990 with the consent of both the parties, evidence of P.Ws.1 to 6, D.Ws.1 to 9, marked Exs.A-1 to A-14, Exs.B-1 to B-25 and after recording findings in detail came to the conclusion that the relief of specific performance prayed for in O.S. No.149 of 1990 to be negatived and accordingly dismissed the said suit with costs and decreed O.S. No.135 of 1993 aforesaid. 3. Aggrieved by the decree and judgment made in O.S. No.149 of 1990, the unsuccessful plaintiff filed A.S. No.3091 of 1999. The said unsuccessful plaintiff in O.S. No.149 of 1990 being the third defendant in O.S. No.135 of 1993 had preferred A.S. No.2194 of 1999. 4. In view of the fact that common evidence was recorded and common judgment had been delivered in both the aforesaid suits, both these appeals also are being disposed of by a common judgment by this Court. Submissions of Sri K.V. Satyanarayana: 5. Sri K.V. Satyanarayana, learned counsel representing appellant in both these appeals had taken this Court through the respective pleadings of the parties both in O.S. No.149 of 1990 and O.S. No.135 of 1993 and would maintain that in the light of the facts and circumstances the learned Additional Senior Civil Judge, Eluru, totally erred in dismissing the suit for specific performance and decreeing the suit for eviction. The learned counsel also laid emphasis on the fact that the appellant had cleared of the liability contracted by the respondents and this would clearly establish the oral agreement of sale pleaded by the appellant. The learned counsel also further submit that the issuance of cheque for Rs.25,000/- on 16.2.1987 being not in serious controversy, this fact would clearly establish the existence of such oral agreement of sale. The possession of the discharged mortgage deed by the payment also would establish the said oral agreement of sale. The learned counsel also while further elaborating his submissions had pointed out to the oral and documentary evidence available on record and would maintain that Ex.A-10 is the office copy of the legal notice and the reply was given on 27.8.1990 and even by that time the suit was instituted. The learned counsel also pointed out to the evidence of D.W.1 and also the evidence of D.W.3 and would maintain that the admission made by D.W.3 would clearly go to show that the stand taken by D.W.1 cannot be said to be a sustainable stand. The learned counsel also would point out that the clear evidence of P.W.1 well supported by P.Ws.2 to 6 would clearly establish the case of the appellant. The counsel also pointed out to Ex.A-9 the pocket notebook and further pointed out the inconsistency in the pleadings in both the suits as well. The learned counsel also pointed out to Ex.B-7 and further had pointed out relating to the non-examination of certain witnesses. The counsel specifically pointed out to the oral evidence available on record and would maintain that the terms of oral agreement had been clearly established. The non-inclusion of D-6 in the contest of the allegations in the plaint in O.S. No.135 of 1993 also had been specifically pointed out. When the discharge of mortgage, in fact, had been accepted, the findings recorded contra cannot be sustained. The eviction suit had been thought of subsequent to the suit filed for the relief of specific performance. 6. The evidence of D.W.1 is that D.W.1 was in need of money. While further elaborating his submissions, the learned counsel also specifically pointed out to the respective stands taken by the parties in the pleadings in O.S. No.135 of 1993 and would maintain that even on the established facts the civil court cannot entertain the suit for eviction and even if it is to be taken that the oral agreement of sale had not been established, the remedy, if any, for eviction would be before the appropriate Rent Controller, definitely not before the civil court. The counsel also would maintain that the suit had been thought of as a counterblast to the suit for specific performance. The learned counsel also would maintain that the trial court ought to have appreciated that the first defendant and second defendant never stayed in India and, hence, the tenancy as pleaded by the plaintiff in O.S. No.135 of 1993 cannot be believed. The learned counsel relied on certain decisions and ultimately would conclude that since the findings recorded being not in accordance with the oral and documentary evidence available on record, the suit for specific performance to be decreed and the suit for eviction to be dismissed. Submissions of Sri D.V.N. Acharya: 7. Sri D.V.N. Acharya learned counsel representing R-2/D-2 had pointed out that the oral agreement of sale had been disbelieved by the trial court. The payment of Rs.25,000/- by way of cheque was made to a third party. The learned counsel also pointed out the periodical increase of rents as can be evidenced from Ex.A-9. The learned counsel also further had taken this Court through the oral and documentary evidence available on record and ultimately would conclude that the findings being in accordance with law, the said findings are to be confirmed. The learned counsel also relied on certain decisions to substantiate his submissions. Submissions of Sri V.L.N. Gopala Krishna Murthy: 8. Sri V.L.N. Gopala Krishna Murthy, the learned counsel representing other contesting respondents would maintain that the alleged payment of Rs.25,000/- had not been made to any of these parties to the suit. In the facts and circumstances of the case, it may have to be inferred that time to be the essence of contract, but the case appears to be otherwise. The counsel also pointed out to the absence of contract between plaintiff and D-6. Ex.A-2 letter had been manufactured. Improvements between the pleadings and proof had been specifically pointed out in the evidence of P.W.2. P.W.1 was cross-examined after P.W.2 and the improvements made by both these witnesses had been specifically pointed out. The learned counsel while elaborating his submissions would maintain that the payment of Rs.25,000/-, at any rate, cannot be related to the alleged oral agreement of sale. The discharge of the mortgage debt also was not proved. When the party approached the Court with unclean hands, suit for specific performance cannot be decreed even otherwise the plea is that an oral agreement of sale had been entered into. Unless there is clear evidence, it cannot be said that the same had been established. The learned counsel also pointed out to Ex.B-24 and Ex.B-25 and also Ex.A-3 and would maintain that these would go to show P.W.3 also was resident of Eluru and even in this regard a false stand had been taken. Hence, the evidence of P.W.2 that he never resided at Eluru cannot be believed. The learned counsel also pointed out that P.W.1 has no right to maintain the appeal at all in the light of the finding recorded that P.W.2 is the tenant. The learned counsel also relied on certain decisions to substantiate his submissions. 9. Heard the counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the trial court as well. 10. Before taking up further discussion it may be appropriate to have a glance at the respective pleadings of the parties, the evidence available on record and also the findings recorded by the trial court in nut-shell. Pleadings of the parties: O.S. No.149 of 1990: Averments made in the plaint: 11. This is a suit filed for the relief of specific performance of oral agreement of sale, dated 16.2.1987, said to have been entered into by the plaintiff and defendants 1 to 4 and the mother of 5th defendant for Rs.2.00 lakhs in respect of plaint schedule property. 12. Defendants 1 to 3 and 6 are the sons of late Abdul Razak. After his death, defendants 1 to 4 and 6th defendant and the mother of 5th defendant became entitled to the schedule property. The wife of Abdul Razak predeceased him. 13. It is also averred that the plaintiff took the ground floor of the upstair building on lease from one late Md. Maqbul, maternal uncle of defendants 1 to 4 and 6, in 1973 on a monthly rental of Rs.200/-. In 1977 the plaintiff also took the upstair portion on lease on a monthly rental of Rs.150/-. Thus, from 1977, the plaintiff had been in possession and enjoyment of the entire plaint schedule building on a monthly rental of Rs.350/-. In 1984 the rent was enhanced to Rs.900/- . The plaintiff continued in occupation of the plaint schedule property as tenant till 16.2.1987 on which date he purchased the plaint schedule property under an oral agreement of sale. 14. Further it is averred that defendants 1 to 4 and 6 and mother of 5th defendant mortgaged the plaint schedule property for Rs.15,000/- to Neelam Raja Ratna Bai, the elder sister of the plaintiff, on 15.7.1980 and executed a registered mortgage deed in her favour. While so, on 16.2.1987 defendants 1 to 4, late Kulshid Sultana, the mother of 5th defendant, offered to sell and the plaintiff agreed to purchase the plaint schedule property for a valuable consideration of Rs.2,00,000/-. The oral agreement of sale took place in the presence of Md. Khaja Khan, M.J.S. Prasada Rao, N.J. Kumar and Jayadeep. As per the terms of oral agreement of sale, the plaintiff shall pay Rs.25,000/- as advance on the same day, i.e., on 16.2.1987 and he shall discharge the registered mortgage deed, dated 15.7.1980, executed by defendants 1 to 4 and the mother of 5th defendant in favour of his elder sister Neelam Raja Ratna Bai and the said mortgage deed had to be taken as a voucher for the sale deed and the amount of mortgage remaining due was arrived at Rs.19,500/- and the balance sale consideration of Rs.1,55,500/- shall be paid by the plaintiff within 8 months from the date of oral agreement of sale i.e., 16.2.1987. The property shall be delivered to the plaintiff on 16.2.1987 itself. Defendants 1 to 4 and the mother of 5th defendant undertook to get the sale deed executed by 6th defendant also whose whereabouts are not known by that time. 15. It is also further averred that in pursuance of the said oral agreement of sale, dated 16.2.1987, the plaintiff issued a cheque bearing No.594863, dated 16.2.1987, for Rs.25,000/- drawn on State Bank of India, Eluru, in the name of Md. Pasha, who is the husband’s brother of 4th defendant, at the request of defendants 1 to 4 and the mother of 5th defendant. Pursuant to the said oral agreement of sale, the plaintiff discharged the mortgage debt due to his sister and took the mortgage deed as voucher thereof. Since the plaintiff had been in possession of the plaint schedule property, the property was delivered to him and the plaintiff has been continuing in possession of the buildings from 16.2.1987 onwards. 16. It is also averred that the plaintiff demanded defendants 1 to 4 and mother of 5th defendant to execute a registered sale deed after receiving the balance sale consideration before the agreed date, i.e., 16.10.1987. But, defendants 1 to 4 and mother of 5th defendant postponed the execution of the sale deed on the pretext that 6th defendant was being persuaded to execute the sale deed along with them and represented that they would execute the sale deed after securing the presence of 6th defendant. The plaintiff has been always ready and willing to perform his part of contract. 17. Further it is averred that Kulshid Sultana died leaving behind her daughter i.e., 5th defendant, as her heir. The plaintiff got issued a registered notice, dated 11.8.1990, demanding the defendants to execute the sale deed after receiving balance of sale consideration. After receipt of the notice, defendants 1 to 5 illegally tried to dispossess the plaintiff. Thus, defendants 1 to 5 refused the demand of the plaintiff. Hence, the suit. Averments made in the written statement: 18. Defendants 1 and 2 filed common written statement denying the allegations of the plaint inter alia admitting the relationship of the defendants. It was also pleaded that the name of 5th defendant is Suphia Parveen and not simply Suphia. Defendant No.6 left the house long time back and his whereabouts are not known. The defendants also admitted the area and structures of the plaint schedule property as described by the plaintiff and they had also admitted that the plaint schedule property originally belonged to late Abdul Razak and after his death it was devolved on defendants 1 to 4 and 6 and the mother of 5th defendant. But they had denied that the wife of Abdul Razak predeceased him. 19. Further it is stated that defendants 1 to 4 and the mother of 5th defendant never agreed to sell the plaint schedule property to the plaintiff on 16.2.1987 or at any point of time. The defendants had absolutely no need or necessity to sell the property. The present rate of plaint schedule property is more than Rs.7.00 lakhs and on the alleged date of agreement its value was not less than Rs.5.00 lakhs as alleged by the plaintiff. The letter dated 24.8.1987 said to have been written by the sister of the plaintiff Smt. Neelam Raja Ratna Bai is false and fabricated document. The plaintiff had set up a false and fraudulent plea of oral agreement of sale in collusion with his sister Neelam Raja Ratna Bai with a view to grab the plaint schedule property. The defendants also denied the payment of Rs.25,000/- through a cheque bearing No.594863, dated 16.2.1987. 20. It is also further stated that the building was never leased out in 1973 to the plaintiff by late Md. Maqbul on a monthly rental of Rs.200/- for the ground floor and in 1971 the plaintiff took the upstair also on lease on condition of paying Rs.150/- per month for the upstair building as rent as alleged by the plaintiff. The defendants also denied that the plaintiff has been in possession and enjoyment of the entire building from 1977 on condition of paying Rs.350/- and thereafter the rent was enhanced to Rs.900/- in the year 1984 and that the plaintiff continued in occupation of the plaint schedule property as tenant and he became owner of the property on the basis of the alleged oral agreement of sale, dated 16.2.1987. The defendants had been demanding their tenant Neelam Raja Ratna Bai to vacate and hand over possession. 21. It is also stated that the defendants leased out their building to Neelam Raja Ratna Bai and her husband David L. Traxler and subsequently they left for U.S.A. in 1984 and at the time of their leaving for U.S.A. the agreed rent was Rs.1,100/- per month and subsequently it was enhanced to Rs.1,300/- per month with effect from 01.01.1989. The plaintiff, his brothers and another sister Smt. Lalitha Bai had been simply staying in the plaint schedule house as family members of Neelam Raja Ratna Bai, the tenant of the defendants. The plaintiff is in illegal and unauthorized occupation in the absence of the tenant who had been staying abroad for some time now. The defendants had specifically denied that the plaintiff demanded defendants 1 to 4 and the mother of 5th defendant to execute a sale deed after receiving the balance of sale consideration and that the defendants postponed the execution of the sale deed on the pretext that the 6th defendant was being persuaded to execute the sale deed along with them and that they represented the plaintiff that they would execute the sale deed after securing the present of 6th defendant. 22. It is also further stated that the plaintiff got issued a registered legal notice, dated 11.8.1990, with all false allegations setting up a false oral agreement of sale to grab the property of the defendants. Defendants 1 to 4 got issued reply legal notice on 27.8.1990 and the same was received by the counsel for the plaintiff on 28.8.1990. The plaintiff even without waiting for the reply, filed the present suit. The defendants were not aware of the police report given by the plaintiff on 14.8.1990. The plaintiff gave a false report on 17.8.1990 against the defendants with a view to create evidence in support of his bogus claim. There is no cause of action to file the suit and, hence, the suit is liable for dismissal. 23. Defendants 3 to 5 had adopted the written statement of defendants 1 and 2. Defendant No.6 had not chosen to contest the matter. 24. Issues settled by the trial court: (1) Whether the oral agreement of sale dated 16.2.1987 is true? (2) Whether the plaintiff was a tenant in possession of the subject property by the date of alleged oral agreement? (3) Whether the plaintiff is entitled to the relief of specific performance of alleged oral agreement? (4) To what relief is the plaintiff entitled? Pleadings in O.S. No.135 of 1993: Averments of the plaint: 25. This is a suit filed by defendants 1 to 4 in O.S. No.149 of 1990 as plaintiffs and the plaintiff in O.S. No.149 of 1990 is shown as third defendant in the suit and it is a suit for eviction of tenants and for recovery of arrears of rents or damages for use and occupation or in the alternative for recovery of possession and mesne profits or damages for use and occupation of the plaint schedule property. 26. It was pleaded that plaintiffs 1 to 3 are brothers and 4th defendant is their sister. The mother of 4th defendant late Smt. Kurshid Sultana is the elder sister of plaintiffs 1 to 4 and they are the children of Abdul Rajak and his wife late Almas Begum. Plaintiffs 1 to 3 had an elder brother by name Md. Farooz Pasha who left the house without intimation in or about 1976 and whose whereabouts are not known. Defendant No.4 is the only daughter of late Kurshid Sultana. She had been married and had been living at Vadi in Karnataka State. 27. It was further pleaded that the plaintiffs are the absolute owners of the plaint schedule property comprising 700 square yards of site with upstair building and tiled shed therein. The second defendant is the husband of first defendant and the third defendant is the younger brother of first defendant. The third defendant had been staying with first defendant as a member of her family and assisting her in her affairs. 28. Further it was pleaded that defendants 1 and 2 took the ground floor of the plaint schedule building for rent for their residence. Later they took the upstair portion also and they were paying rent of Rs.350/- per month from some years for the entire building and after periodical enhancements, defendants 1 and 2 were paying rent of Rs.900/- per month by 1984. Earlier, plaintiffs 1 to 4 and the mother of 4th defendant together borrowed Rs.15,000/- from the first defendant on the security of the plaint schedule property and executed a registered simple mortgage bond, dated 15.7.1980, agreeing to repay the same with interest at 15% per annum. On 15.10.1983 the plaintiffs made a payment of Rs.9,312-50 ps. comprised of Rs.7,312-50 ps. towards interest and Rs.2,000/- towards principal by that date and it was duly endorsed on the mortgage bond. 29. It was also further pleaded that defendants 1 and 2 left for U.S.A. in 1984 and at the time of their leaving, the agreed rent was Rs.900/- per month. Defendants 1 and 2 assured the plaintiffs that they would be paying the monthly rents through the third defendant, who was attending to their affairs here and in management of their properties and that there could not be any apprehension regarding the same. The rent was enhanced to Rs.1,100/- per month in October, 1986, and the said rent was in vogue till 31.12.1988. The plaintiffs were asking defendants 1 and 2 to vacate and hand over possession of the building, as they required it for their own residence and occupation. Defendants 1 and 2 often times the third defendant on behalf of defendants 1 and 2 were only giving assurances and promising to pay arrears of rent and vacate the building. Defendants 1 and 2 paid the agreed rents at Rs.1,100/- per month only till 31.8.1987 and the rents were being paid through the first defendant’s younger brother, i.e., the third defendant. The rents for the subsequent period, i.e., from 01.9.1987 to 31.12.1988 at the agreed rate of Rs.1,100/- per month were not paid. The plaintiffs, their relatives as well as the third defendant contacted the first defendant through phone a number of times to vacate the premises after paying the arrears of rent. 30. It was also pleaded that in the month of November or December, 1988, defendant No.1, through telephone, promised to come to India very soon, settle the arrears, pay the same and vacate the building on her return to India and that there could not be any fear about it and agreed to increase the monthly rent to Rs.1,300/- with effect from 01.01.1989. Thus, the agreed rent was Rs.1,300/- per month with effect from 01.01.1989. Defendants 1 and 2 paid monthly rents due to the plaintiffs up to 31.8.1987 only, but failed to pay the monthly rents from 01-9-1987 to 31-12-1988 at the rate of Rs.1,100/- per month and for the period from 01-01-1989 to 31-8-1990 and subsequently till date at the rate of Rs.1,300/- per month as had been agreed upon. 31. Further it was pleaded that when the first defendant came to India in December, 1989, the plaintiffs demanded payment of all arrears and vacate the building and make it available for plaintiffs’ occupation. During her visit to Eluru in December, 1989, the first defendant assured the plaintiffs that there was nothing to worry about it and that the plaintiffs might not entertain