IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.773 OF 2010 Between: Bukka Srinivas ..... Appellant And Nethi Kyadari & 6 others …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.773 OF 2010 JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.4 of 2008, on the file of the VI Additional District Judge’s Court, Medak at Siddipet, dated 15.07.2009, by which the judgment and decree in O.S.No.88 of 1998, on the file of the Junior Civil Judge’s Court, Gajwel, Medak District, dated 27.03.2006, were confirmed. 2. The factual background for the Second Appeal is that the suit was filed originally against two defendants by the plaintiff for specific performance of contract and possession of Plaint A Schedule lands and for cancellation of the registered sale deeds shown in the Plaint B Schedule. The plaintiff claimed that the first defendant was the owner and possessor of Acres 2.00 guntas in S.No.74A and Acre 2.17 guntas in S.No.220/EE of Kyasaram Village, Gajwel Mandal, Medak District and the first defendant purchased the said items of land from the original owners under registered sale deeds, dated 12.03.1996 and 12.07.1996. When the first defendant offered to sell both the items of land, the plaintiff entered into an agreement of sale with him on 26.08.1996 for a consideration of Rs.60,000/- out of which Rs.55,000/- was paid as earnest money. Execution of a registered sale deed and delivery of possession were agreed to be made after two years while the title deeds were handed over to the plaintiff. The first defendant protracted the matter since the demand by the plaintiff in July, 1998, and due to disputes between the plaintiff’s brother and the first defendant’s nephew, the first defendant executed registered sale deeds, dated 16.07.1997 and 21.07.1997, in respect of the suit lands in favour of the second defendant without any consideration and without delivery of possession. The plaintiff, hence, contended that the second defendant is not a bonafide purchaser and he was aware of the agreement of sale in favour of the plaintiff. The plaintiff claimed to have issued a legal notice on 10.08.1998 to both the defendants for which there was no reply and again registered notices were issued on 01.09.1998 and 17.09.1998 for which also there was no response and hence, the suit. 3. As the first defendant died even before filing a written statement, his legal representatives were impleaded as defendants 3 to 7 in the suit and defendants 3 and 7 were set ex parte, while defendants 4 to 6 did not file any written statement. The second defendant, the subsequent purchaser, denied the agreement of sale and contended that the plaintiff from whom the first defendant was obtaining loans used to obtain the signatures of the first defendant on blank stamp papers in respect of the loans. The second defendant purchased the suit lands for a consideration of Rs.24,000/- and Rs.29,100/- respectively and he is a bonafide purchaser whose name was mutated in the revenue records. The suit agreement of sale was a created document and hence, the second defendant desired the suit to be dismissed. 4. On such pleadings, the trial Court framed the following issues for trial: 1. Whether the plaintiff is entitled for the specific performance of contract for “A” schedule property and possession? 2. Whether the plaintiff is entitled for cancellation of Registered sale deeds No.3106/97, dated 21.07.1997 and also 2590/97, Dt. 16.06.1997 for “A” and “B” schedule property? 3. Whether the plaintiff is entitled for eviction of Defendants from “A” schedule lands? 4. Whether the plaintiff is entitled for rectification of entries to cancel the entries made in favour of Defendant No.2 in respect of schedule “A” lands? 5. To what relief? 5. During trial, the trial Court examined P.Ws.1 to 3 and D.Ws.1 to 6 and marked Exs.A-1 to A-21 and Exs.B-1 to B-5. 6. The trial Court rendered its judgment on 27.03.2006 observing that the plaintiff examined as P.W.1 admitted the first defendant purchasing pesticides and seeds from him on credit basis and his obtaining documents on a stamp paper or on a plain paper in respect of such sales. The admission of the plaintiff as P.W.1 about purchase of two stamp papers on 26.08.1996 and his further admission of a xerox copy of document, dated 26.08.1996, were also referred to. The trial Court observed that the purchase of the stamp papers with Serial Nos.10342 and 10343 on the same day and the admission of the unmarked xerox blank paper signed by the first defendant probablise the obtaining of the signature of the first defendant on a blank stamp paper. The trial Court also felt it unbelievable that the plaintiff would have agreed to wait for two years if he had paid Rs.55,000/- out of Rs.60,000/- towards sale consideration and the trial Court also examined Ex.A-1- agreement of sale and found that different parts of Ex.A-1 were scribed in different inks though by the same person. The gaps in the document were also considered as improbablising circumstances and P.Ws.2 and 3, the witness and the scribe of Ex.A-1, were not relied on due to the admissions of P.W.1 and also due to P.W.2 being a customer of P.W.1 and P.W.3, being the owner of the photo studio adjacent to the shop of P.W.1. The trial Court of course accepted the evidence for the second defendant about the bonafides of his purchase for valuable consideration and consequently dismissed the suit with costs. 7. In appeal, the first Appellate Court rendered the impugned judgment again referring extensively to the rival contentions, evidence and judgment of the trial Court and framed the following points for consideration. (i). Whether the plaintiff is entitled for specific performance of contract? (ii). Whether the plaintiff is entitled for cancellation of Ex.B1 and Ex.B2 registered sale deeds? (iii). Whether the plaintiff is entitled for rectification of revenue records and for cancellation of the entries made in favour of defendant No.2? (iv) Whether Defendant No.2 is a bonafide purchaser for valid consideration without notice of Ex.A1, Agreement of sale executed in favour of plaintiff by defendant No.1? (v) Whether the Judgment passed by the lower court is sustainable? 8. It considered all the points together and observed that the plaintiff examined as R.W.1 in I.P.No.2 of 1998 claimed the first defendant to be due Rs.1,50,000/- to him towards purchases of pesticides, fertilizers, etc. It also noted the admissions of P.W.1 about the stamp papers with Serial Nos.10342 and 10343 and his identification of the signatures on them and his further admissions about his getting executed documents on stamp papers or plain papers whenever he gave pesticides on credit and the first Appellate Court also, on analysing the contents of the said stamp papers, noted that Ex.A-1 agreement, within one month 26 days after the execution of agreement scribed on stamp paper No.10343 should have been in fact earlier as its stamp has No.10342. The first Appellate Court also noted that the original sale deeds, Exs.A-2 and A-3, were probablised to have been taken by the plaintiff subsequently but not under Ex.A-1 and it found that the last three lines in Ex.A-1 were written by a different person than the person who scribed Ex.A- 1. The Appellate Court also found that there was a lot of gap between the contents and conclusion of Ex.A-1 and the signatures of the first defendant on Ex.A-1 which probablises the plaintiff obtaining the signatures of the first defendant on a blank stamp paper as is usually done by money lenders. The first Appellate Court also referred to P.W.2 belonging to the same caste and village as P.W.1 and P.W.2 not stating execution of Ex.A-1-agreement of sale by the first defendant to be in his presence. The first Appellate Court also noted P.W.3 to be a neighbouring shop owner to P.W.1 and his absence at the time of the alleged settlement of terms between the plaintiff and the first defendant. The first Appellate Court also came to the conclusion that P.Ws.2 and 3 are interested witnesses who cannot be relied on. 9. The first Appellate Court went further to accept the evidence of D.Ws.1 to 6 showing the bonafide purchase for valid consideration by the second defendant and it also considered it unnatural for the plaintiff to have agreed to wait for two years for a sale deed after paying nearly 93% of the consideration, more so, when the first defendant was due Rs.1,50,000/- to the plaintiff according to the plaintiff’s claims in I.P.No.2 of 1998. Consequently, the equitable relief of specific performance of the contract was held unavailable to the plaintiff and the appeal was dismissed without costs. 10. In the Second Appeal, the plaintiff seeks to contend that Ex.A-1 should have been preferred than Exs.B-1 and B-2 and the evidence should have been appreciated in the background of the disputes and criminal cases between the parties. The legal representatives of the first defendant remaining ex parte was deliberate at the instance of the second defendant and in the absence of any evidence for the first defendant or his legal representatives, the evidence of the second defendant could not have been acted upon. The relevant admissible evidence was claimed to have not been taken into consideration and the material evidence was claimed to have been misconstrued and misappreciated. 11. With such background, the plaintiff claimed that five substantial questions of law arise about (a) the error in relying upon the evidence of the second defendant and his witnesses about the execution of Ex.A-1, (b) the failure of the Courts below to refer to all the exhibits and referring to an unmarked xerox copy, (c) the Courts below taking into consideration the evidence for the second defendant in spite of the first defendant remaining ex parte, and (d) Relying on inadmissible evidence and acceptance of the second defendant’s evidence against legal and evidentiary principles. 12. Sri G. Anandam, learned counsel for the appellant and Sri Ram Mohan Palanki, learned counsel for the second respondent are heard. 13. The point for consideration is whether any substantial questions of law arise in the Second Appeal to enable entertainment of the same by this Court. 14. Section 100 of the Code of Civil Procedure, 1908, mandates that a Second Appeal shall lie only if the High Court is satisfied that the case involves a substantial question of law. Such substantial questions of law shall not only be precisely stated in the grounds of appeal but also should be to the satisfaction of the High Court which should formulate such substantial questions of law, on which alone, the High Court shall hear and determine the appeal. Admission of Second Appeals as a matter of course, irrespective of involvement of any substantial questions of law, was highly deprecated by the Apex Court and therefore, it has to be seen whether the Second Appeal herein raises any substantial questions of law. 15. Sri G. Anandam, learned counsel for the appellant referred to the incompetence of the second defendant to raise any plea against the suit agreement of sale and referred to JUGRAJ SINGH AND ANOTHER V. LABH SINGH AND OTHERS[1], wherein the Apex Court laid down that the subsequent purchasers have got only the right to defend their purchases on the premise that they have no prior knowledge of the agreement of sale with the plaintiff and that they are bonafide purchasers for valuable consideration. But the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor and/or his legal representatives but not to the subsequent purchasers. 16. The principle is unexceptionable but a close perusal of the judgments of the trial Court and the first Appellate Court herein discloses that Ex.A-1-suit agreement of sale was disbelieved by both the Courts, not with reference to either the defence of the second defendant or the evidence adduced by him, but with reference to the admissions of the plaintiff as P.W.1 and the unacceptability of the evidence of P.Ws.2 and 3 to corroborate the claims of P.W.1. The rejection of Ex.A-1- agreement of sale was with reference to the circumstances disclosed by the document itself about the probability of a blank stamp paper with the signature of the first defendant being used for creation of the agreement of sale and also about the probability of the different portions of Ex.A-1 agreement having been scribed at different points of time. Disbelief in the agreement of sale was also due to the unnaturality and improbability of any purchaser agreeing to wait for a period of two years for getting a sale deed and possession, notwithstanding the payment of 93% of the sale consideration under the agreement itself. The first Appellate Court further referred to the evidence of P.W.1 in a connected insolvency proceeding which also probablises that if the first defendant was indebted to a tune of Rs.1,50,000/- to the plaintiff even before the execution of Ex.A-1-agreement of sale, Ex.A-1 could not have been in the manner in which it was claimed to have been executed. The various circumstances elaborated by the trial Court and the first Appellate Court concerning the unacceptability of Ex.A-1 can neither be considered to be irrelevant nor insignificant nor to be against the broad human probabilities arising out of the material on record. No inadmissible evidence could have been considered to have been admitted into the evidence when the criticized xerox copy was admitted by P.W.1 in his evidence and when the burden of proving Ex.A-1-agreement of sale as the basis for the claim for specific performance never shifted from the plaintiff, his failure on that front naturally led to the failure of the suit on appreciation of facts and not on any questions of law. 17. A close consideration of the judgment of the Appellate Court or the judgment of the trial Court does to show that any substantial questions of law arise for consideration in the Second Appeal and while the absence of readiness and willingness to perform his part of the contract by the plaintiff could have been a personal defence available to the vendor alone or his legal representative, the untruth of the transaction itself is not a matter which is not available to be raised to the second defendant in the suit. In any view, as the conclusions of the Courts below were not based on the defence or evidence of the second defendant, but on the basis of the inherent improbabilities arising out of the evidence of the plaintiff itself, no substantial questions of law can be considered to be arising in the Second Appeal coming for consideration of its admission. The Second Appeal should, therefore, fail. 18. Accordingly, the Second Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 29th October, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD SECOND APPEAL No.773 OF 2010 October 29, 2010. KL [1] (1995) 2 Supreme Court Cases 31