THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1358 of 2011 December 14, 2011 Between: Sabbella Peddi Reddy, S/o.Subba Reddy And others ... Appellants And Sabbella Surya Naga Padma Samudra Reddy And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1358 of 2011 JUDGMENT: The appellants are the plaintiffs. This second appeal is filed against the concurring judgment dated 28.9.2010 in A.S.No.54 of 2005 on the file of the Court of the VII Additional District Judge, Kakinada whereby and whereunder the judgment and decree in O.S.No.723 of 1996 dated 06.4.2005 on the file of the Court of the II Additional Junior Civil Judge, Kakinada, was confirmed. The plaintiffs instituted the suit for specific performance of the agreement of sale by directing the defendants to execute sale deed in respect of tiled house bearing No.37-6-7 and daba house bearing No.43-3-1, 2, Market Street, Ward No.17. In their plaint they alleged that the plaintiffs, first defendant, father of defendants 2 to 4 and M/s.Suryaranayana Reddy, Rama Krishna Reddy and Venkata Reddy have shares in the suit schedule property. The first defendant agreed to sell 2/7th share to the plaintiffs. He executed an agreement of sale dated 30.11.1989 agreeing to part with his share for a sale consideration of Rs.50,000/- and accepted Rs.40,000/- as advance. It was also agreed that sale deed should be executed by the vendor-first defendant after his share was determined by the Court in the pending suit O.S.No.315 of 1987. In spite of executing agreement of sale the first defendant executed registered sale deed in favour of defendants 2 to 4 and therefore the suit is filed. After the suit was filed, first defendant died and no steps were taken to bring his legal representatives on record. The defendants 2 to 4 resisted the suit. Their case is that the suit schedule property was purchased in the names of all the brothers under registered sale deed dated 18.5.1963. Suryanarayana Reddy died without leaving Class-I heirs; his brothers being Class-II heirs succeed to the share and, therefore, they got 1/6th share; fifth brother executed sale deed in favour of Dorayya Reddy (first defendant) under registered sale deed dated 29.3.1971 whereafter he became entitled to 2/6th share which in turn he sold the property to defendants 2 to 4 under registered sale deed dated 24.2.1994. Therefore they prayed to dismiss the suit. The trial Court framed three issues. During the trial, the plaintiffs examined P.Ws.1 and 2 and marked Exs.A1 to A5. On behalf of the defendants, the second defendant deposed as D.W.1 and Exs.B1 and B2 were marked. After considering the oral and documentary evidence, the trial Court came to the conclusion that in view of the recitals in Ex.A1 agreement of sale that the sale deed would be executed by the first defendant only after the possession in O.S.No.315 of 1987 the suit is not maintainable unless the said suit, which is pending, is decided. The trial Court also held that the cause of action does not survive as the plaintiffs failed to bring the legal representatives of the first defendant and, therefore, the suit was abated. The plaintiffs admit that even before they entered into an agreement of sale with the first defendant, the first defendant had filed O.S.No.315 of 1987 for partition. The same was dismissed. An appeal was filed before this Court and the same is pending. After filing the suit, the first defendant died and the plaintiffs, who allegedly obtained agreement of sale in respect of 2/7th share of the deceased- first defendant, did not take any steps to bring the legal representatives of the deceased-first defendant. Therefore on both the grounds the suit could not have been proceeded with. The trial Court as well as the appellate Court were correct in dismissing the suit as abated. The finding recorded by the Courts is sound and does not warrant any interference. The second appeal is, therefore, dismissed. _______________ (V.V.S.RAO, J) December 14, 2011 YS