THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 527 OF 1999 Date of Judgment: 25.3.2011 Between: Parlapalli Ramaiah and others …Appellants and Varkota Narsamma ...Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 527 OF 1999 JUDGMENT: This second appeal is by the defendants who are aggrieved by the decree for recovery of possession passed against them by the learned Senior Civil Judge, Huzurabad in AS.No. 20 of 1996 which reversed the judgment and decree passed by the learned District Munisff, Huzurabad in O.S.No. 478 of 1990. The parties are hereinafter referred to as they are arrayed in the suit. The suit came to be filed on the following circumstances, The claim of the plaintiff is that she is the absolute owner of the agricultural lands mentioned in the suit schedule property and it was in her possession till June, 1984. She had to live with her husband at the place of his job at Kazipet, when she requested her cousin, the defendant to supervise the suit schedule property. Later there was also a marital relationship between her son and daughter of the defendant which unfortunately did not last long resulting in matrimonial disputes between the couple and the defendant is alleged to have forcibly occupied the suit schedule property, whereupon the plaintiff filed OS No. 161 of 1981 and obtained temporary injunction order on 23.4.1981. The said suit was contested by the defendant and the injunction order was made absolute on 3.7.1982 which was later vacated, on appeal by the defendant in CMA No. 42 of 1982 on 18.10.1982. Thereafter the suit OS No. 161 of 1981 was dismissed in default on 11.6.1984. The plaintiff, therefore, has filed the present suit for recovery of possession and mesne profits, on 23.4.1990. In the previous suit the defendant had raised one of the defences that he was inducted into possession in pursuance of an agreement of sale dated 12.5.1977-Ex.B5 and consequently he claimed that having discharged all his obligations under the said agreement, his possession is liable to be protected under Section 53-A of the Transfer of Property Act. In the present suit also the defendant had raised the said defence, apart from contending that he is in possession throughout from 1977 onwards in pursuance of the said agreement of sale and in view of that, the temporary injunction order obtained by the plaintiff in the earlier suit was vacated in CMA No. 42 of 1982. It was also alleged that the said agreement of sale-Ex.B5 fully protects the possession of the defendant, even if he has not taken any proceedings for specific performance of the said agreement. On the basis of these rival pleadings, the trial Court framed issues and it proceeded to determine the main issue as to whether the plaintiff is entitled for possession of the suit schedule property. On behalf of the plaintiff, PWs 1 to 4 were examined which comprise the plaintiff herself as P.W.1, her husband as P.W.2 and her adjacent cultivators as PWs 3 and 4. The defendant examined himself as D.W.1 and attester of Ex.B5 as D.W.2 and another witness as D.W.3. While the plaintiff marked Exs.A1 to A17, the crucial among them for consideration are Exs.A3 to A14 which are pahani patrikas for the years 1982-83 to 1989-90 and Ex.A16, the proceedings of the Joint Collector, Karimnagar dated 13.3.1994 rectifying the revenue records by deleting the name of the defendant and including the name of plaintiff. The defendant also marked Exs.B1 to B14 which primarily comprise revenue records such as land revenue pass books, pahani patrikas prior to 1981 and subsequent land revenue receipts and pahani patrikas, apart from Ex.B5- agreement of sale which is already referred to above. On consideration of the evidence, the trial Court disbelieved the case of the plaintiff that she had not executed Ex.B5-agreement of sale and found that the defendant who claims the suit schedule property through Ex.B5-agreement of sale, had discharged his obligations under the said agreement and as such the benefit of Section 53-A of the Transfer of Property Act could be given to the defendant who had examined D.W.2, the attester and he corroborated the evidence of D.W.1 and therefore the trial court dismissed the suit. However, the lower appellate court did not concur with the findings of the trial Court and found that Ex.B5 was not proved by the defendant and there is no evidence that the defendant either performed his part of the contract or he is ready and willing to perform his part of the contract. Consequently the appellate court came to hold that the defendant is not entitled to benefit of Section 53-A of the Transfer of Property Act. The appellate court, therefore, granted a decree to the extent of possession, but to the extent of recovery of mesne profits, the plaintiff was directed to approach the trial Court by an application under Order 20, Rule 12 of the Civil Procedure Code. Hence this second appeal. By order dated 22.6.1999 this Court admitted the second appeal on the following questions which are framed under ground No.5 of memorandum of appeal as substantial questions of law, (a) Whether the first appellate court can disturb the findings of the trial court which based on evidence on record on mere assumptions and presumptions; (b) Whether the agreement of sale dated 12.5.1977 (Ex.B5) can be held as not genuine for non obtaining the signature of P.W.2 or his son even though the findings of the trial court regarding the execution of Ex.B5 by the respondent (plaintiff) is not disturbed? (c) Whether the benefit of Section 53-A of the T.P. Act is not available for non issuing of notice and non payment of balance of sale consideration? (d) Whether the suit for recovery of possession of the sit immovable properties is maintainable without cancellation of the agreement of sale (Ex.B5)? (e) Whether the first appellate court can decide the appeal without there being any pleadings and evidence on behalf of the respondent herein regarding non performance of contract by the appellant? Heard learned counsel for the parties. The learned counsel for the defendant has contended that the judgment of the lower appellate court, particularly when it was reversing the judgment of the trial court, has not considered the reasonings and findings of the trial Court and has not given cogent reasons from differing the same. In order to show that the appellate court as a final court of fact is required to deal with the appeal on facts as well as on law by giving independent and detailed reasonings, the learned counsel has placed reliance upon the decisions of the Supreme Court reported in Jagdish Singh Vs. Madhuri Devi [1], Santosh Hazari Vs. Purushottam Tiwari (deceased) by LRs. [2] and R. Prakash Vs. State of Karnataka [3] as well as decision of a learned single Judge of this Court in Lingamdinne Rama Reddy Vs. Vongole Venktarami Reddy [4]. Learned counsel also submits that the purport of Section 53-A of the Transfer of Property Act has not been properly appreciated by the lower appellate court. He points out that the primary finding of the lower appellate court in rejecting Ex.B5 is based upon a singular fact that the said document is purported to have been executed by the plaintiff alone and neither her husband nor her son is a party to the said document and he criticizes that the said reasoning by itself cannot render Ex.B5 as a concocted document. The learned counsel submits that on the date of Ex.B5 there were cordial relations between the plaintiff and the defendant and only after the matrimonial disputes arose among the children of the parties that the plaintiff resorted to filing OS Nos. 161 of 1981 in the first instance and on failing to obtain injunction order abandoned the said suit and then filed the present suit four years thereafter. The learned counsel, therefore, submits that the possession of the defendant under Section 53-A of the Transfer of Property Act being in pursuance of the written agreement-Ex.B5 and on compliance of the terms and conditions thereof, the same is duly protected in law. The learned counsel further clarifies that irrespective of the defendant seeking relief of specific performance of agreement-Ex.B5 and irrespective of the fact that the limitation for seeking specific performance has expired, the defendant can still maintain and urge for the protection under the said section as is laid down by several decisions of the Supreme Court. Reliance is placed upon decisions reported in Huvappa Irappa Ballari Vs. Basava and another [5], Mahadeva and others Vs. Tanabai [6] a n d Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others [7]. The learned counsel also made a fair submission that the suit schedule property covered nine different items of lands and Ex.B5-agreement does not relate to items 1, 3, 4 and 7. The defendant has, therefore, specifically stated before the trial Court that the aforesaid five items do not form part of Ex.B5-agrement, but the defendant is in possession of the said items as well not by virtue of Ex.B5, but by a different transaction between him and the plaintiff. In any case, the contest now in the second appeal is restricted only to the extent of the items covered by Ex.B5 and as such the decree sought for by the plaintiff is not seriously disputed in respect of items 1, 3, 4 and 7 of the suit schedule property. The learned counsel for the plaintiff has supported the judgment of the lower appellate court by pointing out that the previous litigation initiated in OS No. 161 of 1981 was not adjudicated upon as the said suit got dismissed in default. The learned counsel submits that prior thereto, the plaintiff had obtained temporary injunction order from 23.4.1981 which was made absolute and was in operation till the defendant’s CMA No. 42 of 1982 was allowed on 18.10.1982. He submits that thereafter the plaintiff lost possession on account of which, the plaintiff had to file the present suit for recovery of possession. The learned counsel relies upon the above circumstance to substantiate his further contention that there was no evidence of defendant being in possession in part performance of Ex.B5, as the period during which interim injunction order subsisted in favour of the plaintiff in OS No. 161 of 1981 was on the basis that the plaintiff was in possession. The learned counsel also submits that the very plea of agreement of sale is not sustainable, as P.Ws 1 and 2 have categorically stated that there was no necessity for them to sell the suit schedule property to the defendant. He, therefore, submits that D.W.2 was the sole witness who supports the defendant and except that, no other evidence is forthcoming on the part of the defendant to substantiate Ex.B5. The learned counsel, therefore, points out that the burden of establishing genuineness of Ex.B5 being solely on the defendant, unless he establishes the same, the further questions based on Section 53-A of the Transfer of Property Act would not arise. The learned counsel points out that the lower appellate court has not rejected Ex.B5 only on one ground as alleged, but it has taken into consideration the evidence on record and as such the judgment of the lower appellate court is not vitiated on any ground and as such no interference is warranted by this Court under Section 100 of the Civil Procedure Code. I have considered the submissions of the learned counsel for the parties. So far as the legal position in the aforesaid decisions with respect to duties of first appellate court as well as the intended purpose of section 53-A of the Transfer of Property Act, are well settled and it needs no repetition by this Court. The crucial question, however, on which both the courts below have differed is with respect to the proof of Ex.B5-agreement of sale claimed by the defendant. According to the defendant, D.W.2 is one of the attesters and his evidence is, therefore, crucial. I have seen the said evidence of D.W.2 who is said to be an ex-patwari, aged 76 years on the date of his evidence. He states that he was suffering from blood pressure, diabetes and had a weak memory. He, however, says that about 17 or 18 years back Ex.B5-agreement was executed in his house and apart from other attesters, he is also said to have attested the agreement. He goes to the extent of claiming that the payment of Rs.8,500/- made by the defendant to the plaintiff was counted by the plaintiff and acknowledged and thereafter the plaintiff, defendant and scribe, except the two attesters, went to the suit land. D.W.1, however, states in his evidence that Ex.B5 was executed in the house of D.W.2 and the plaintiff put a thumb mark on the said agreement which was attested by other witnesses, but before the said execution, the plaintiff took all the elderly persons and the defendant to the suit land and showed the suit land to the elderly persons as well as to the defendant and the mali-patel noted down the survey numbers shown by the plaintiff and in their presence the plaintiff delivered possession. Thus, according to D.W.1, the agreement was executed after delivery of the possession, whereas according to D.W.2, after execution of the document, the parties went to the suit land. D.W.1 also does not claim in his evidence that the plaintiff counted the money as stated so by D.W.2, but only says that on payment of the amount, the plaintiff handed over the agreement of sale to him. The evidence of D.W.2, which was accepted by the trial Court, while dismissing the suit, therefore, does not appear to be very reliable as he goes to the extent of saying something which the defendant himself does not state as D.W.1. The discrepancy in the way in which D.Ws 1 and 2 have described the transaction is evident as noted above. Further D.W.2 was an old and ailing person and not expected to remember the events which took place about 17 or 18 years back as he himself says that he was suffering from ill-health and had a weak memory. The said evidence, therefore, cannot be held to be sufficient to prove Ex.B5 as was understood by the trial Court. The lower appellate Court, therefore, has rightly not relied upon the evidence of D.W.2. Even more importantly the proof of Ex.B5 being the primary responsibility of the defendant, it was most elementary for the defendant to have confronted the said document to P.W.1, the plaintiff. On examination of the evidence of PWs 1 and 2 it reveals that neither were confronted with Ex.B5 to admit or deny the signatures of P.W.1 said to be appearing therein. In my opinion, the said circumstance has to be held against the defendant coupled with the fact that the defendant has not taken any other steps to establish that Ex.B5 was signed/thumb marked by the plaintiff. Neither opinion of an expert was called for nor any other oral evidence was led to establish or prove the signatures of other attesters. Therefore, this is a case where the defendant has withheld best evidence from being produced and as such the conclusion of the lower appellate court that Ex.B5 is not proved does not suffer from any infirmity or perversity. That apart, assuming that Ex.B5 is proved, the defendant still had to establish that he has discharged all his obligations under the said document in order to claim benefit of Section 53-A of the Transfer of Property Act. Even according to the defendant, out of total consideration of Rs.9,000/-, he had paid Rs.8,500/- and only balance of Rs.500/- remained to be paid, which, according to the defendant, was payable on the date of plaintiff executing a registered sale deed. However, from 12.5.1977 i.e., the date of Ex.B5 onwards, the defendant has not taken any steps whatsoever and not even a legal notice was issued to the plaintiff showing readiness or willingness on the part of the defendant. The defendant has raised the defence for the first time based on Ex.B5 only when the plaintiff filed earlier suit for injunction in O.S.No. 161 of 1981. Even subsequent thereto there is no evidence of the defendant taking any steps to comply with obligations under Ex.B5. The benefit of Section 53-A of the Transfer of Property Act, therefore, was rightly declined to the defendant by the lower appellate court. It is also necessary to deal with an incidental aspect on which the learned counsel for the defendant placed reliance based upon revenue record showing that the defendant’s possession purported to be under Ex.B5. As mentioned above, D.W.2 was patwari and there is evidence that he wrote the revenue records showing the defendant as purchaser of the land and based on that, the entries in the revenue records started reflecting the name of defendant as against the name of the plaintiff. This led to the plaintiff filing a revision under Record of Rights Act before the Joint Collector. In the said proceedings, the Joint Collector called for and examined the records and directed restoration of the entries in favour of the plaintiff by deleting the name of defendant and those proceedings are marked as Ex.A16. There is no evidence of any further proceedings thereon and as such Ex.A16 appears to have attained finality. Thus, viewed from any angle, the findings of the lower appellate court holding that the defendant had failed to establish the genuineness of Ex.B5 and consequently he being not entitled to benefit of Section 53-A of the Transfer of Property Act are clearly sustainable. The substantial questions of law are accordingly answered against the appellants. The second appeal is dismissed with costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 25.3.2011 KR [1] (2008) 10 Supreme Court Cases 497 [2] (2001) 3 Supreme Court Cases 179 [3] AIR 2004 SUPREME COURT 1812 [4] 2009 (4) ALD 560 [5] (2005) 12 Supreme Court Cases 164 [6] (2004) 5 Supreme Court Cases 88 [7] (2002) 3 Supreme Court Cases 676