THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.978 of 1996 and Cross Objections (SR) No.37248 of1997 Date: 01.07.2011 Between: Alamuri Mallikharjuna Rao … Appellant/ 1st defendant AND 1. Gummidi Appaji Ramu … Respondent/ Plaintiff 2. Kallidindi Sita Rama Subrahmanya Gopala Krishnamaraju (Died) Per L.Rs. R-3 to R-5. .. Respondent/ 2nd defendant THE HON’BLE SRI JUSTICE K.G. SHANKAR A.S.No.978 of 1996 and Cross Objections (SR) No.37248 of1997 JUDGMENT: The appeal is laid by the first defendant in O.S.No.4 of 1987 on the file of the Senior Civil Judge, Bhimavaram. He assails the judgment of the learned Senior Civil Judge, Bhimavaram dated 07.11.1995. The plaintiff is arrayed as the first respondent. The second defendant is arrayed as the second respondent in the appeal. 2. The plaintiff in his turn filed cross objections. The plaintiff arrayed the defendants as respondents 1 and 2 in the cross objections. He brought respondents 3 to 5 on record as the legal representatives of the second defendant contending that the second defendant died during the pendency of the appeal. The first defendant, however, did not bring the legal representatives of the second defendant on record, perhaps as his case is against the plaintiff and not against the second defendant. The parties shall be referred to hereinafter in accordance with their array as in the suit. The respondents 3 to 5 in the cross objections shall be referred to as legal representatives of the second defendant. 3. The plaintiff sought for specific performance of Ex.A.1 agreement of sale. Indeed he sought for an alternative relief of a money decree. The basis of his claim is the agreement of sale in his favour from the first defendant. The second defendant is the purchaser of the property after the agreement of sale by the first defendant in favour of the plaintiff. Consequently, by way of abundant caution, the plaintiff laid the suit against the second defendant also inter alia seeking a direction to the second defendant to execute the sale deed along with the first defendant in favour of the plaintiff in respect of the plaint schedule property. 4. The defendants separately contested the suit. The first defendant denied the agreement of sale in favour of the plaintiff. He claimed that the property was purchased by the second defendant and that the second defendant is the owner of the property. The second defendant contended that he is the bona fide purchaser for consideration and that the plaintiff cannot seek any relief against him. 5. The trial Court held that the first defendant entered into an agreement of sale with the plaintiff. It further held that the second defendant was a bona fide purchaser of the property for consideration without notice. The trial Court consequently decreed the suit against the first defendant directing the first defendant to pay a sum of Rs.36,000/- which was paid by the plaintiff to the first defendant together with interest at 12% per annum from the date of the agreement of sale under Ex.A.1 till realization and also awarded damages at Rs.4,000/-. Both sides were directed to meet their respective costs. The suit was dismissed as against the second defendant. 6. As there is no relief against the second defendant, the second defendant did not prefer any appeal. As a money decree was passed against the first defendant, the first defendant preferred the main appeal. As the decree for specific performance was denied, the plaintiff preferred cross objections seeking for specific performance of the agreement of sale. 7. The case revolves round the question of law as to when specific performance of the agreement of sale shall be ordered. Sri E. Srinivas, learned counsel for the plaintiff primarily advanced his submissions on the question of specific performance of the agreement of sale. 8. Incidentally, the learned counsel for the plaintiff also supported the decree. Although the first defendant preferred the main appeal, there was no representation for the first defendant. The appeal and the cross objections are disposed of without hearing the first defendant and after hearing the learned counsel for the plaintiff only. 9. The case of the plaintiff may conveniently be stated at this stage. The plaintiff pleaded: a) The plaint schedule property is Ac.1.50 cents out of Ac.1.88 cents, which is the eastern part of Ac.2.04 cents in R.S.No.41/3 situate in Rayalam Village, Bhimavaram Taluk. The plaintiff was a minor by October 1985. The father of the plaintiff entered into an agreement of sale on behalf of the plaintiff with the first defendant on 16.10.1985 under Ex.A.1 agreeing to purchase the plaint schedule property at Rs.40,000/-. Rs.30,000/- was paid on 16.10.1985 itself. b) The first defendant and his brother Veerabhadra Rao became the owners of the plaint schedule property through a registered settlement deed dated 06.06.1985 under Ex.A.2. The donor under Ex.A.2 became the owner of the property through a Will 12.04.1965, executed by Poosarapu Mallaiah, maternal grandfather of the first defendant. c) On 02.05.1986, the father of the plaintiff paid Rs.6,000/- to the first defendant under Ex.A.4 endorsement. The first defendant handed over the tile deed, viz., Ex.A.2, at that time, to the father of the plaintiff. d) The plaintiff through his father was ready to pay the balance amount of Rs.4,000/- and obtain a sale deed in favour of the plaintiff in respect of the plaint schedule property. As the first defendant was procrastinating, the plaintiff got issued Ex.A.7 notice on 23.12.1986 demanding the first defendant to execute the sale deed. The first defendant issued a reply to Ex.A.7 on 07.01.1987 through Ex.A.8. The first defendant denied Ex.A.1. He claimed that he is not the absolute owner of the plaint schedule property. e) The plaintiff consequently seeks for a specific performance of the agreement of sale. As the first defendant claimed that the property was sold to the second defendant, the plaintiff brought in the second defendant also as a party to the suit seeking for the same relief against the second defendant as well. 10. The first defendant averred: a) The first defendant never executed the agreement of sale under Ex.A.1 nor did he make an endorsement on Ex.A.1 under Ex.A.4. The first defendant was a tenant of Povvada Tanaji. The plaintiff brought up Ex.A.1 in connivance with the Povvada Tanaji. b) The first defendant executed sale deeds in favour of the second defendant. The possession of the plaint schedule property was handed over to the second defendant. c) Non-joinder of Janakamma, mother of the first defendant shall also the plaintiff. 11. The second defendant in his turn laid a written statement. The second defendant urged: The second defendant paid Rs.30,000/- to Alamuru Janakamma, Alamuru Veerabhadra Rao, Alamuru Srinivasa Rao and the first defendant on 10.07.1985 and obtained Ex.B.9 agreement of sale (Alamuru Janakama is the mother of the first defendant. Alamuru Veerabhadra Rao and Alamuru Srinivasa Rao are the brothers of the first defendant). The second defendant took possession of the property on the date of Ex.B.9 and has been in possession of the same ever since. The second defendant obtained sale deeds under Exs.B.10 and B.12 on 06.01.1987 on 21.01.1987 from the father of the first defendant and others in respect of the plaint schedule property for Ac.1.50 cents and in respect of Ac.0.38 cents, which adjoins the plaint schedule property. As the second defendant is bona fide purchaser of the plaint schedule property for consideration without notice, the plaintiff is not entitled to specific performance against the second defendant. 12. On the strength of these pleadings, the plaintiff examined 4 witnesses. The defendants 1 and 2 in their turn examined 4 witnesses. The plaintiff exhibited Exs.A.1 to A.8. The defendants exhibited Exs.B.1 to B.16. Holding that the plaintiff made out a case against the first defendant and holding that the second defendant made out his own case, the learned trial Judge decreed the suit, as already stated, granting the alternative relief of a money decree, instead of a decree for specific performance. 13. The first defendant laid the appeal, but has not contested the appeal. Nevertheless, the learned counsel for the plaintiff advanced his exhaustive submissions on his own case since the plaintiff ultimately stands or falls on the strength of his own case and not on the basis of the weakness of the defence. The learned counsel for the plaintiff tried to show that the agreement of sale in favour of the plaintiff by the first defendant is true and is binding on the first and the second defendants. I, therefore, propose to examine whether the plaintiff has established his case at the out set. In the event the plaintiff established his case, the next question, which is a question of law, viz., whether the plaintiff is entitled to specific performance sought for, deserves to be examined. 14. The plaintiff examined his father as PW.1. It is PW.1 who entered into an agreement of sale with the first defendant on behalf of the plaintiff as the plaintiff was a minor at the time of the agreement of sale. The plaintiff examined PWs.1 to 4 to prove Ex.A.1 agreement of sale and Ex.A.4 endorsement on Ex.A.1. 15. The first defendant as DW.1 and the second defendant as DW.2 denied Exs.A.1 and A.4. Indeed, the second defendant could not have knowledge about Exs.A.1 and A.4. The defendants also examined DWs.3 and 4. However, DWs.3 and 4 spoke about Exs.B.9, B.10 and B.12. DWs.3 and 4 did not speak anything about Exs.A.1 and A.4. 16. The evidence of DW.1 is more negative in nature. He denied executing Ex.A.1. The first defendant as DW.1, however, either directly or indirectly admitted his signature on Ex.A.1. It may be recalled that the defence of the first defendant is that the first defendant was a tenant under Puvvada Tanaji, that he signed on a few blank papers at the request of Tanaji to facilitate Tanaji to use the same in connection with his business and that Ex.A.1 could have been concocted on one such paper. The plaintiff cannot be blamed for not seeking expert opinion whether Exs.A.1 and A.4 bear the signatures of the first defendant or not, where the first defendant directly or indirectly admitted his signatures on Exs.A.1 and A.4. 17. However, the first defendant set up a blank paper theory. As the initial burden rests upon the plaintiff to establish the agreement of sale, the plaintiff is duty bound to prove Ex.A.1 as well as Ex.A.4. To substantiate his claim, the plaintiff examined PWs.2 to 4. PW.2 is one of the attestors of Ex.A.1. PW.3 is the scribe of Ex.A.1. PW.4 is the scribe of Ex.A.4. Thus, apart from examining himself, the plaintiff examined either the attestor or the scribe of Exs.A.1 and A.4 to prove them. 18. PW.2 is the brother-in-law of the plaintiff. Katta Rajagopal, other attestor of Ex.A.1, was a clerk of the plaintiff at the time of Ex.A.1. PW.2 admitted that he did not know PW.3, scribe of Ex.A.1. However, PW.2 was clear and emphatic that Ex.A.1 was executed in his presence. The evidence of PW.2 is fortified by PW.3. As the scribe of Ex.A.1, PW.3 spoke about the contents of Ex.A.1. He claimed that he prepared Ex.A.1 on the instructions of the first defendant and on the basis of the documents furnished by the first defendant. PWs.2 and 3 agree with each other that Ex.A.1 was prepared in the shop of the plaintiff. As rightly observed by the learned trial Judge, the evidence of PWs.2 and 3 substantially agree with the evidence of the plaintiff as PW.1. There is nothing on record to doubt the evidence of PWs.2 and 3. Moreover, there is no contrary evidence to the stand put forth by the plaintiff. I, therefore, have no hesitation in holding that the plaintiff proved Ex.A.1 through his evidence as well as the evidence of PWs.2 and 3. 19. Ex.A.4 is more an incidental aspect. Ex.A.4 is an endorsement on Ex.A.1 regarding payment of Rs.6,000/- in cash on 02.05.1986. It is the case of the plaintiff that he made a part payment of Rs.6,000/- to the first defendant on 02.05.1986 at the request of the first defendant and that the first defendant made an endorsement on Ex.A.1 agreement of sale as Ex.A.4 endorsement. Ex.A.4 was scribe by PW.4. PW.4 was thoroughly cross-examined. PW.4 admittedly is not a professional document writer. Merely because PW.4 is not a professional document writer, the endorsement on Ex.A.4 cannot be suspected. PW.4 deposed that PW.1 as well as DW.1 requested him to scribe the endorsement on Ex.A.1 20. PW.4 pointed out that P. Tanaji and Manepalli Suryanarayana Gupta attested Ex.A.4. It is the case of the first defendant that the plaintiff could secure and procure the loyalty of P. Tanaji. Assuming that Tanaji has turned hostile to the first defendant, the first defendant could have examined Manepalli Suryanaraayana Gupta to disprove Ex.A.4. The first defendant did not choose to do so. The first defendant also did not offer any explanation why he did not examine either Tanaji or Suryanarayana Gupta who attested Ex.A.4. Similarly, the first defendant did not give any reason why he did not choose to examine Katta Rajagopalam who attested Ex.A.1 along with PW.2. It may be recalled that the first defendant did not take the stand that Katta Rajagopalam and Manepalli Suryanarayana Gupta were enemical towards him, while he took a specific stand that Puvvada Tanaji was against him. Thus, the circumstances are that while the plaintiff examined the scribe and one of the attestors of Ex.A.1 and also examined the scribe of Ex.A.4, the first defendant did not choose to examine the other attestor of Ex.A.1 and either of the attestors of Ex.A.4. Added to it, the first defendant did not assign any reason for not choosing to examine the other attestor of Ex.A.1 and either of the attestors of Ex.A.4. In the absence of evidence to the contrary from the defence side, the evidence of the plaintiff as PW.1, fortified by the evidence of PWs.2 to 4 proved Exs.A.1 and A.4. The trial Court was perfectly justified in holding that there was an agreement indeed between the plaintiff and the first defendant and that the first defendant received consideration in part under Exs.A.1 and A.4. Consequently, the first defendant is duty bound to honour the agreement under Ex.A.1. 21. At this stage, I may refer to the stand taken by the first defendant regarding the title to the plaint schedule property. It may be recalled that R.S.No.41/3, Rayalam village consists of Ac.2.04 cents out of which Ac.1.50 cents on the eastern side is covered by Ex.A.1. Ex.B.10 is registered sale deed dated 06.01.2007 is in respect of Ac.1.50 cents covered by Ex.A.1. Ex.B.12 is a registered sale deed dated 21.01.1987 in respect of Ac.0.38 cents adjoining the property covered by Exs.A.1/B.10. Exs.B.10 and B.12 are registered sale deeds in favour of the second defendant. 22. The first defendant has taken a stand that he did not have title to the property covered by Ex.A.1. His case is: a) Poosarapu Mallaiah, great grandfather of the first defendant owned Ac.3.47 cents of land in Bethapudi. He executed a Will in 1965 under the original of Ex.B.8 conferring life estate in the grand mother Alamuri Janakamma and life estate thereafter upon the father of the first defendant. The Will bequeathed the reminder to the male children of the father of the first defendant. b) As the Will executed by Poosarapu Mallaiah was acted upon, the property at Rayalam was sold in favour of one Poosarapu Veera Venkata Satyawathi and that the sale deed was executed by Janakamma, Veerabhadra Rao and by the mother of the first defendant on behalf of Srinivasa Rao, minor brother of first defendant by then. 23. The first defendant alleged that he along with other owners and life estate holders of the property executed a possessory agreement of sale in respect of Ac.1.88 cents of property including the plaint schedule property in favour of the second defendant for a consideration of Rs.60,160/- and that sale deeds were subsequently executed under Exs.B.10 and B.12. His claim thus is that the agreement of sale in favour of the second defendant was executed by Janakamma under Ex.B.9 and the first defendant along with his brothers; so much so the agreement under Ex.A.1 by the first defendant alone has no validity. The first defendant thus more or less is setting up title in third parties. 24. I am afraid that the first defendant cannot go back on Ex.A.1. Assuming that the first defendant did not have absolute rights in the properties and that Janakamma as well as the brothers of the first defendant also have rights in the property covered by the plaint schedule, it is for them to contest the case. So far as the first defendant is concerned, after executing Ex.A.1 claiming that he is the absolute owner of the plaint schedule property, he cannot go back and contend that he did not have title and that the plaintiff, therefore, could not acquire any title over the same through the first defendant. 25. The plaintiff inter alia produced Ex.A.2. Ex.A.2 is a settlement deed executed by the brother of the first defendant (Alamuri Veerabadra Rao) in favour of the first defendant relinquishing his rights in the property. Evidently, the first defendant acquired absolute title of the property by virtue of Ex.A.2. The relevance of Ex.A.2 is on a different connotation. It is the case of the first defendant that he never executed Ex.A.1 much less Ex.A.4. Indeed, PWs.2 to 4 proved Exs.A.1 and A.4. An added dimension to the case of the plaintiff is Ex.A.2. It is the case of the plaintiff that when the first defendant received part to the sale consideration under Ex.A.4, the first defendant delivered Ex.A.2 to the plaintiff. Ex.A.2 ought to be in the possession of the first defendant. While it is the case of the plaintiff that the first defendant delivered Ex.A.2 to the plaintiff, the first defendant has not, however, offered any explanation how the plaintiff could get the possession of Ex.A.2 if the story of the plaintiff is not true. Thus, apart from the evidence of PWs.1 to 4, Ex.A.2 also proves Exs.A.1 and A.4. I, therefore, hold that the plaintiff proved Exs.A.1 and A.4 agreement of sale and endorsement thereto. The plaintiff, therefore, is entitled to the decree sought for by him. Specific Performance of Ex.A.1: 26. While the plaintiff sought for the specific performance of the agreement of sale and sought for the alternative relief of refund of the money, the trial Court considered it fit to pass a money decree. The trial Court denied granting of specific performance of the agreement of sale. Questioning the judgment of the trial Court in this regard, the plaintiff filed cross objections. 27. The intervening fact between Exs.A.1 and A.4 and the suit is the sale of the plaint schedule property and other property adjoining the plaint schedule property by the first defendant to the second defendant through Exs.B.10 and B.12 sale deeds. The second defendant inter alia contended that he is a bona fide purchaser for consideration without notice and that the sales in his favour cannot be set aside. The trial Court considered that the second defendant is a bona fide purchaser. Consequently, the trial Court declined to grant the relief of specific performance and awarded a money decree, which indeed is the alternative relief sought for by the plaintiff. Sri E. Srinivas, learned counsel for the plaintiff, however, contended that the plaintiff is entitled to specific performance of the agreement of sale and sought for a decree for specific performance instead of a decree for the alternative relief granted by the trial Court. The limited question is whether the plaintiff is entitled to specific performance of the agreement of sale. The question whether the first defendant entered into an agreement of sale with the plaintiff or not does not arise. However, the question of fact regarding the agreement of sale between the plaintiff and the first defendant has been examined and is found to be true for the reasons already set out. 28. I now propose to examine whether the plaintiff is entitled to specific relief or to the alternative relief only. 29. The plaintiff produced documentary evidence to establish that his transaction was bona fide. Ex.A.5 is the bank passbook of the plaintiff. Ex.A.6 is the relevant entry in the passbook showing withdrawal of Rs.30,000/- for the payment under Ex.A.1. He contended that the defendants failed to show that the alleged transaction between the first defendant and the second defendant covered by Exs.B.9, B.10 and B.12 were genuine by producing similar bank accounts. It is the case of the second defendant that he paid Rs.3,000/- on 10.07.1985 at the time of the agreement of sale under Ex.B.9, cleared the bank loan of the first defendant to a tune of Rs.10,000/- with Taderu Large Sized Cooperative Credit Society Limited pursuant to which Ex.B.16 no due certificate was issued by the Cooperative Credit Society and that he paid Rs.7,000/- on 06.01.1987 at the time of the registration of Ex.B.10 sale deed. It may be recalled that Ex.B.10 is the sale deed for an extent of Ac.1.50 cents covered by the plaint schedule. The second defendant further urged that on 09.01.1987, he made a part payment of Rs.2,160/- to the first defendant evidenced by the endorsement on the overleaf of Ex.B.9 and that the balance of Rs.10,000/- was paid to the first defendant at the time of the execution and registration of Ex.B.12 sale deed on 21.01.1987. 30. It is the contention of the learned counsel for the plaintiff that the defendants failed to prove the payments set up by the defendants. Ex.B.16 indeed is a no due certificate. It does not show that the second defendant deposited Rs.10,000/- with the Cooperative Credit Society. The first payment of Rs.3,000/- is evidenced by Ex.B.9 itself which is proved by DW.3. The payment of Rs.7,000/- under Ex.B.10 is proved not only by Ex.B.10 and defendants as DWs.1 and 2 but also by DW.4 who was an attestor of the sale deed under Ex.B.10 as well as an identifying witness for the sale deed. 31. The defendants did not choose to examine anyone regarding the part payment on 09.01.1987 which is Ex.B.11 and the payment of Rs.10,000/- at the time of execution of Ex.B.12 sale deed on 21.01.1987. The evidence of DWs.1 and 2 indeed is more than sufficient to prove Ex.B.11 and B.12. At any rate, the concerned of the plaintiff is in respect of Ac.1.50 cents covered by Ex.A.1 and Ex.B.10. Insofar as the transaction relates to Ac.1.50 cents, Exs.B.9, B.16 and B.10 coupled with the evidence of DWs.1 to 4 clinchingly and categorically established that the possessory agreement of sale under Ex.B.9 and the sale deed under Ex.B.10 are genuine, truthful and bona fide transaction. I am afraid that no inference can be drawn from the available evidence that the transaction between the first and the second defendant is not bona fide and that the second defendant is not a bona fide purchaser. 32. The learned counsel for the plaintiff referred to another circumstance showing that the second defendant was not a bona fide purchaser and was a stoogy set up by the defendant. He placed reliance upon Ex.A.3 encumbrance certificate. Ex.A.3 was obtained by the plaintiff on 15.10.1985, i.e., a day prior to the date of the agreement of sale under Ex.A.1. The encumbrance certificate showed the first defendant as the possessor of the property. The learned counsel for the plaintiff submitted that if a possessory agreement of sale had been executed by the first defendant in favour of the second defendant on 10.07.1985 itself, the encumbrance certificate would have and should have shown the second defendant as the possessor of the property. His contention is that as the agreement of sale between the first and the second defendant is sham and nominal, the second defendant never