THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO AS.No.372 of 2001 and SA.No.422 of 2013 COMMON JUDGMENT : As the parties to these two matters are one and the same and the subject matter of both these matters is substantially connected, they are being disposed of by this common judgment. 2. AS.No.372 of 2001 is filed challenging the judgment and decree dt.17.07.2000 in OS.No.62 of 1997 of the Senior Civil Judge, Avanigadda. 3. SA.No.422 of 2013 is filed challenging the judgment and decree dt.31.12.2012 in AS.No.7 of 2006 of the VI Additional District Judge (FTC), Krishna, at Machilipatnam, confirming the judgment and decree dt.30.11.2005 in OS.No.45 of 2001 of the Senior Civil Judge, Avanigadda. 4. Sistla Sree Rama Sastri and his son Sistla Chandrasekhar (defendants in OS.No.62 of 1997 who are plaintiffs in OS.No.45 of 2001) (for short, ¡®the owners¡¯) are owners of (i) a house and a site bearing Panchayat D.No.2/46 situated in an extent of Ac.0.12 cents of house site (item no.1 in plaint schedule in OS.No.62 of 1997) and (ii) agricultural wet land of extent Acs.3.32 cents in RS.No.434 (Acs.2.32 cents of this land is item no.2 in the plaint schedule in OS.No.62 of 1997 and ¡®A¡¯ schedule property in O.s.45 of 2001; and the balance Ac.1.00 cents is ¡®B¡¯ schedule property in OS.No.45 of 2001) in Pedakallepalli Village, Mopidevi Mandal, Krishna District. 5. The appellant in A.S.372 of 2001/ plaintiff in O.S.62 of 1997/defendant in O.S.No. 45 of 2001 claimed to be the tenant of the total extent of Ac.3.32 cents belonging to the owners. 6. I shall first deal with AS.No.372 of 2001 arising out of OS.No.62 of 1997. PLAINT IN O.S.NO.62 OF 1997 7. In the plaint filed in O.S.62 of 1997, he claimed that 1st defendant in O.S.No.62 of 1997 and his father Sistla Venkateswarlu sold him Ac.1.00 out of the Ac.3.32 cents of land long back to meet the expenses of marriage of 1st defendant¡¯s daughter and he continued to be in possession of the balance Ac.2.32 cents as tenant. He claimed that he was allowed to stay in the above referred house for a period of 10 years prior to 1997. He alleged that he came to know that the owners/defendants intended to sell away Ac.2.32 cents; so he filed A.T.C No.15 of 1996 on the file of the Special Officer, Tenancy Tribunal at Avanigadda for declaration of his tenancy rights and injunction against owners; that 2nd defendant sent a word to him for negotiations and ultimately the defendants agreed to sell this extent of land as well as the old house for a sum of Rs.2,10,000/- and obtained a letter dt.13-06-1996 from him. According to him, there was an agreement between himself and defendants that (i) he would pay Rs.50,000/- out of the sale price by 01-07-1996 and (ii) pay the balance by 31-03-1997 and the defendants would execute a registered sale deed in his favour at his expense; that the value of the house was fixed at Rs.40,000/- and the value of wet land of extent Ac.2.32 cents was fixed at Rs.1,70,000/-; that he agreed to give up A.T.C.No.15 of 1996 and to pay 24 bags of paddy by 31-03-1997; both defendants agreed to this term and signed on the letter (photocopy of which is Ex.A2) and retained custody of the said letter and gave photocopy of the same to him. He claimed that he paid Rs.50,000/- to 1st defendant by 01-07-1996 and he was always ready and willing to perform his part of contract to complete the transaction by 31-03-1997 even though time was not essence of contract of sale. He contended that he was directed to obtain 2 Demand Drafts of Indian Bank, one dt.19-04-1997 for a sum of Rs.50,000/- and another dt.24-04-1997 for Rs.31,000/- in the name of 1st defendant and pay the balance in cash at the time of registration. He claimed that 2nd defendant had reached Machilipatnam on 23-04-1997 from Pune and the defendants agreed to adjust and appropriate the sum of Rs.40,000/- towards the price of house and Rs.10,000/- towards the rental value of 24 bags of paddy due for ¡®sarva¡¯ in fasli 1406. 8. He contended that he entered into an agreement to sell Ac.0.50 cents of land in R.S.No.434 of Pedakallepalli village to his nephew Arja Srinivasa Rao for Rs.50,000/-; that the father-in-law of his son had given Ac.1.00 of land towards Pasupu Kumkuma to the plaintiff¡¯s daughter-in-law which was agreed to be sold to her brother and a demand draft for Rs.78,000/- was taken towards balance of consideration payable under the agreement of sale. 9. He contended that he had requested the defendants to obtain pattadar passbooks in respect of subject land, but they did not produce them and did not cooperate for completion of the transaction, and since the latter evaded to receive the balance of sale consideration in spite of several efforts by him and through mediators to execute the sale deed, he got the amounts covered by the Demand Drafts deposited in the Bank in the name of his son Siva Mallikarjuna Rao to be paid to defendants. 10. He alleged that 1st defendant shouted in the village that he would sell away the property to others for higher price and would dispossess him by force. Therefore, he was forced to file A.T.C.No.8 of 1997 before the Special Officer, Tenancy Tribunal at Avanigadda for confirmation of his possession and for injunction asserting that he would also file a suit to specifically enforce the contract for sale dt.13-06-1996; as the defendants did not come around, he had no alternative but to file the present suit O.S.62 of 1997 for specific performance of the agreement of sale dt.13-06-1996 directing the defendants to execute and to register the conveyance in his favour after receiving the balance sale price of Rs.1,70,000/- and costs. THE WRITTEN STATEMENT IN O.S.NO.62 OF 1997 11. The 1st defendant filed a written statement denying the plaint averments. He contended that there was no sale by him or his father of Ac.1.00 of land to plaintiff as alleged by plaintiff; that they never allowed him to stay in the dilapidated house of defendants at the village; that defendants never executed any agreement in favour of plaintiff as alleged in the plaint and the suit agreement is not valid under law or otherwise. He also alleged that plaintiff had not issued any legal notice prior to filing of suit demanding specific performance of the alleged agreement of sale by showing his readiness and willingness and straightaway filed the suit which is contrary to law. They also denied the plaintiff¡¯s allegation that the original of agreement dt.13-06-1996 is with them and further alleged that the plaintiff had pull down the entire house (item No.1 of the plaint schedule) and a criminal complaint was given by them against plaintiff, which is pending. 12. The 2nd defendant filed a memo adopting the written statement of 1st defendant. ISSUES FRAMED IN O.S.62 OF 1997 13. On the basis of these pleadings, the trial Court framed the following issues: ¡°1. Whether the agreement of sale dt.13-06-1996 is in existence, true and valid? 2. Whether the plaintiff has always been ready and willing to perform his part of contract? 3. Whether the plaintiff is entitled for specific performance as prayed for? 4. To what relief?¡± 14. Before the trial Court, the plaintiff examined himself as P.W.1 and examined P.Ws.2 to 5 on his behalf apart from marking Exs.A-1 to A-7. The 1st defendant examined himself as D.W.1 and examined DW.2 also apart from marking Exs.B-1 to B-5. Exs.X-1 to X-3 were also marked. JUDGMENT IN O.S.NO.62 OF 1997 OF TRIAL COURT 15. By judgment and decree dt.17-07-2000, the Court below dismissed the suit. 16. (i) It held that there was an admission by plaintiff that defendants had executed a possessory agreement of sale in his favour and concluded that in such an event, the original of it would be with him but not with the defendants. It therefore did not believe the plaintiff¡¯s contention that the original of Ex.A-2 was with defendants and only copy was left with him. (ii) It held that in Ex.A-2, which is the photocopy of the letter addressed by plaintiff to defendants, beneath the signature of plaintiff, the date was mentioned as 03-06- 1996; underneath the signatures of defendants, the date mentioned was 13-06-1996; there is a doubt as to whether the original of Ex.A-2 was dt.03-06-1996 or 13- 06-1996; and that there is no dispute between the parties that they both agreed for the transaction on 13-06-1996. (iii) It observed that there was no recital in Ex.A-2 that copy of the same would be retained with plaintiff and that its original would be delivered to defendants; that the plaintiff failed to prove that the original of Ex.A-2 is in the custody of defendants; and even with regard to ExA-2, stamp duty and penalty were to be collected on its original; that Ex.A-2 is styled only as a letter and the plaintiff¡¯s admission shows that there is a separate possessory agreement executed on 13-06-1996. (iv) It held that plaintiff was only managing the property but was not a tenant of defendants even by 1994 as can be seen from Exs.B-1 and B-5 and the contention of defendants that plaintiff is only a farm servant appears to be a possibility. (v) It noted that 1st defendant as D.W.1, having denied the agreement of sale between himself and plaintiff in his written statement, admitted about the possessory agreement dt.13-06-1996 and the evidence of P.W.2 does not support the plaintiff¡¯s case about execution of original of Ex.A-2 since P.W.2 had not witnessed the signature of defendant Nos.1 and 2 in the original of Ex.A-2. (vi) It held that the evidence of P.W.3, who is a close relative of plaintiff, cannot be accepted since there is no record to show that he paid consideration of Rs.51,000/- to plaintiff and purchased Ac.0.50 cents of land from him. (vii) It rejected the evidence of P.W.4, son of plaintiff, that his father was ready with the balance consideration of Rs.1,60,000/- on 31-03-1997 and that 1st defendant postponed receiving the amount on the ground that 2nd defendant is at Pune and the same was invested into Banks at Machilipatnam, Vuyyuru and Pedakallepalli on the ground that P.W.4 was not present at the time of agreement and that he did not witness the agreement personally. (viii) It held that neither the original of Ex.A-2 nor the possessory agreement pleaded by defendants, were placed before the Court. (ix) It observed that normally time was not essence of contract of an agreement to sell, the intention to treat the time as an essence of contract may be evidenced by circumstances; and the stipulation between the parties that if the balance amount is not paid by 31-03-1997, the agreement of sale stands cancelled and the advance of Rs.50,000/- would stand forfeited, indicates that time was of essence of contract. It held that the advance amount Rs.50,000/- as can be seen from Exs.X-1 to X-3 was paid by plaintiff in August, 1996 after 01-07-1996. (x) It drew an adverse inference against plaintiff on the ground that Sri Gurunadham, Advocate, from whom the 1st defendant received the advance of Rs.50,000/-, was not examined by plaintiff. (xi) It found fault with the plaintiff for not issuing notice to defendants to produce original of Ex.A-2 before filing of the suit and held that Sri Gurunadham, Advocate was not examined by plaintiff and he had not given evidence even though plaintiff got issued summons to him. It held that P.W.2 had stated that Sri Gurunadham, Advocate was handed over the original of Ex.A-2 and the said Sri Gurunadham, Advocate had delivered it to defendants after paying Rs.50,000/- to 1st defendant, but his non- examination is fatal to the plaintiff¡¯s case. (xii) It held that Ex.A-2 is to be strictly proved by plaintiff even assuming that defendants admitted their signatures on Ex.A-2 and that Ex.A-2 does not bind them. (xiii) It held that the story of plaintiff that he deposited Rs.1,50,000/- with Sri Gurunadham, Advocate cannot be believed since he stated that he had no prior acquaintance with Sri Gurunadham, Advocate and no receipt was obtained from Sri Gurunadham in proof of receipt of Rs.1,60,000/- on behalf of defendants to be handed over to defendants. (xiv) It opined that plaintiff had not issued any notice to defendants that he was ready and willing to perform his part of contract and therefore the plaintiff cannot be said to be ready and willing to perform his part of contract particularly when he was not able to show that he had deposited Rs.1,60,000/- with Sri Gurunadham, Advocate. (xv) It lastly held that plaintiff had not approached the Court with clean hands and therefore he is not entitled to the relief of specific performance of contract of sale. THE APPEAL A.S.NO. 372 OF 2001 17. Challenging the same, the appeal A.S.372 of 2001 is filed. 18. Heard the learned counsel for appellant and the learned counsel for respondents. CONTENTIONS OF COUNSEL FOR APPELLANT IN A.S.372 OF 2001 19. The learned counsel for appellant contended that the judgment and decree of the Court below are contrary to law and weight of evidence; there was no admission by plaintiff about possessory agreement of sale in his evidence and the trial Court had misread his evidence and presumed that such a possessory agreement of sale was admitted by him to have been with defendants without any basis; that the possessory agreement mentioned by him in his evidence was with regard to sale by plaintiff to his nephew Arja Srinivasa Rao of Ac.0.50 cents of land for raising Rs.50,000/- to finance the transaction with defendants; defendants had never pleaded in the written statement about the existence of a possessory agreement of sale between the parties; and in the absence of even a plea by defendants, the trial Court erred in assuming the existence of such a possessory agreement of sale. He contended that contrary to the plea raised in the written statement that he never entered into such an agreement of sale, 1st defendant, in Ex.A-1 as well as in his evidence, admitted that he had entered into agreement of sale with plaintiff on 13-06-1996; the trial Court ignored this conduct of defendants ; the defendants had admitted to have received the sum of Rs.50,000/- paid as advance by plaintiff through Sri J.V.Gurunadham, Advocate of Machilipatnam by way of cheque in August, 1996 which is supported by Exs.X-1 to X-3; by receiving the said amount in August, 1996 the defendants had waived the stipulation that it must be paid before 1.7.1996; in fact this amount had been tendered to 1st defendant prior to 01-07-1996 itself by plaintiff, but the 1st defendant took him to his advocate Sri J.V.Gurunadham and only after consultation with the said advocate, received the sum of Rs.50,000/-; even the balance consideration of Rs.1,60,000/- was made ready by 31-03-1997, but when he approached 1st defendant to pay the amount, he told the plaintiff that his son, 2nd defendant was living in Pune and he had to return for taking money and to execute registered sale deed; and since 2nd defendant did not return by the end of March, 1997, the plaintiff obtained two demand drafts Exs.A-3 and A-4 and a fixed deposit for Rs.78,000/- in the name of his son Siva Mallikarjuna Rao utilising the money realised on the sale of land by plaintiff¡¯s daughter-in-law. The learned counsel for appellant further contends that as per the admission of 1st defendant on 13-06-1996, there was an agreement between the parties; that this agreement was evidenced by the letter dt.13-06-1996 addressed by him to defendants; this letter was given to P.W.2, the scribe of the original of Ex.A-2 to hand over the same to the Advocate Sri Gurunadham; that the said Advocate obtained the signatures of defendant Nos.1 and 2 thereon and only gave a photocopy thereof to plaintiff; in view of the admission about the agreement of sale between plaintiff and defendants by 1st defendant in his evidence, the non-production of original of Ex.A-2 is not of much significance; and at best, even if produced, the original of Ex.A-2 would only be a piece of evidence establishing the existence of the agreement between parties for sale of the subject properties; merely because the plaintiff could not establish the fact that the original of Ex.A-2 is in the custody of defendants, he cannot be denied the relief. He further contended that time was never essence of contract of sale and even if it was of essence, the plaintiff was always ready and willing to perform his part of contract; that the trial Court perversely appreciated the evidence and denied the relief of specific performance to plaintiff. He further contended that there is no requirement in law that without issuing notice seeking specific performance, a suit for such relief cannot be maintained and all that the law requires is that there must be a demand by plaintiff to defendants to execute the sale and refusal by defendants to do so and a pleading to that effect in the plaint. He therefore prayed that the judgment and decree of the trial Court be set aside and appeal allowed. CONTENTIONS OF COUNSEL FOR RESPONDENTS IN A.S.372 OF 2001 20. The learned counsel for respondents/defendants supported the judgment and decree of the trial Court and its conclusions. She contended that the trial Court was right in holding that there was an admission about possessory agreement of sale by plaintiff and that when such possessory agreement of sale exists, it is presumed to be kept in the plaintiff¡¯s custody and since it was not produced, the trial Court was right in drawing an adverse inference against plaintiff. She further contended that the trial Court rightly held that the original of Ex.A-2 was not proved by plaintiff to be in the custody of defendants; the non-examination of Sri Gurunadham, Advocate of Machilipatnam by plaintiff also is fatal to the plaintiff¡¯s case; and plaintiff¡¯s case that (a) the said Advocate procured the signatures of defendants on the original of Ex.A-2 and handed over the photocopy thereof as Ex.A-2 to plaintiff and his allegation that (b) he had passed on Rs.50,000/- as advance to defendants through the said Advocate apart from depositing Rs.1,60,000/-, the balance consideration with the said Advocate to be handed over to defendants before 31-03-1997, is not proved. She also contended that the Court below was correct in holding that time was essence of agreement of sale and the plaintiff had not performed his obligations under agreement of sale as stipulated by the parties within the time limits agreed upon and that the plaintiff had come to the Court with unclean hands. She further contended that no case has been made out for interference in this appeal with the findings of the trial Court and the appeal be dismissed. 21. I have noted the submissions of both sides. THE POINTS FOR CONSIDERATION 22. The following points arise for consideration in this appeal : (a) Whether the agreement of sale dt.13.06.1996 is in existence, true and valid? (b) Whether the plaintiff has always been ready and willing to perform his part of the contract? (c) Whether time is of essence of the contract? (d) Whether the plaintiff is entitled to relief of specific performance as prayed for? (e) Whether the trial court erred in dismissing the suit filed by the plaintiff? Point (a) : 23. In the plaint, the plaintiff pleaded that he was a tenant of the entire extent of Ac.3.32 cents belonging to the owners for past forty years; that Ac.1.00 was sold by 1st defendant and his father several years back to him; that he came to know that the owners/defendants were contemplating to sell away the balance of Ac.2.32 cents; he then filed ATC.No.5 of 1996 on the file of Special Officer, Tenancy Tribunal, Avanigadda for declaration of his tenancy rights and for an injunction as against his threatened dispossession from the land; notices were ordered therein to the owners; in June, 1996, the 2nd defendant came over to Machilipatnam and sent word to him for terms; after discussing all aspects, the owners agreed to sell the 2nd item of the plaint schedule (Ac.2.32 cents) as well as item no.1 for Rs.2,10,000/- and obtained a letter on 13.06.1996 from him. According to him, he was to pay Rs.50,000/- out of the sale price by 01.07.1996 and the remaining balance by 31.03.1997; that he agreed to give up ATC.No.5 of 1996 and pay 24 bags of paddy as rent by 31.03.1997; and both defendants had agreed for these terms and signed on the said letter. He also contended that original of Ex.A2 was retained in the custody of defendants and a Photostat copy Ex.A2 was given to him. 24. In the written statement filed by 1st defendant, which was adopted by 2nd defendant, the defendants denied execution of any agreement in favour of the plaintiff as alleged in the plaint on 13.06.1996. They also denied that they had kept the original of the agreement dt.13.06.1996 with them. But DW1 admitted that he and 2nd defendant had agreed to sell the plaint schedule properties to plaintiff and also the terms thereof as pleaded by plaintiff. In Ex.A1, copy of counter filed by defendants in ATC no.8/1997 on 4.12.1997 also they made similar admissions. The trial court ignored this evidence without assigning any reason. It thus committed a grave error. 25. Therefore, the existence of an agreement between the plaintiff and the defendants containing the terms set out in plaint cannot be doubted. The trial court therefore erred in coming to conclusion that there was no such agreement in existence between the parties. 26. When Ex.A.2 was sought to be tendered in evidence by the plaintiff as PW.1, the counsel for the defendants objected to its admissibility on the grounds that (a) it required stamp and penalty; and (b) that it cannot be admitted as secondary evidence. The court observed ¡°¡ ¡ subject to proof of the original transaction, copy of original in the custody of the plaintiff can be admitted at this stage as secondary evidence. Objections overruled.¡± 27. The trial court in its judgment referred to the above observation in para.12 of its judgment and went on to consider whether original of Ex.A.2 was in the custody of the defendants. It held in para.11 that there was an admission of PW.1 that the defendants executed a possessory agreement on 13.06.1996 and so his stand that original agreement is lying with defendants cannot be accepted since Ex.A.2 is not a possessory agreement, but only a letter constituting the terms and conditions of the agreement admitted by both sides. It also held in para.19 of its judgment that the custody of the document is not proved by defendants (sic plaintiff). 28. Firstly, the reference to possessory agreement in the evidence of PW.1 as set out in para.11 of the trial court judgment is not with regard to the suit transaction mentioned in Ex.A.2. It is with regard to sale of half acre of land in Sy.No.434 by plaintiff to his nephew Arja Srinivas Rao. In my opinion, the trial court grossly misread the evidence of PW.1 and misdirected itself by assuming that plaintiff admitted that defendants had executed a possessory agreement in his favor. 29. It ought to have seen that in the evidence of DW.1 for first time a new case (i.e., that the defendants had executed a possessory agreement of sale in favour of the plaintiff) is introduced. There is no such plea in the written statement filed by defendants. It is settled law that without plea, no amount of evidence can be looked into. So the trial court¡¯s finding that there was such possessory agreement of sale is unsustainable. 30. Considering the inconsistent, contradictory and prevaricating stands of the defendants, I am of the opinion that the