IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE SEVENTH DAY OF TWO THOUSAND NINE PRESENT: THE HON'BLE SRI JUSTICE A.GOPAL REDDY SECOND APPEAL NO : 596 of 2009 (Appeal under Section 100 of CPC against the decree dated 13/10/2008 in AS No. 115 of 2004 on the file of the Court of VII.ADDL.DISTRICT COURT(FTC) KAKINADA preferred against the decree dated 26/03/2004 in OS No. 36 of 2001 on the file of the court of I Additional Senior Civil Judge, Kakinada) Between: Mummidi Rama Krishna S/o. Late Veer Raju D.No. 20-4-16, Satya Sai Public School, Market St., Kakinada. ..... APPELLANT AND 1 Mummidi Satyavathi (died) Saila Lakshmi, W/o. Suryanarayana H.No. 70-2-172, Ramanayyapeta, Kakinada. 2 Jampana Venkata Satyanarayana Raju S/o. Surapa Raju R/o. Magam (V), Iyanavilli Mandal, E.G. District. .....RESPONDENT(S) Counsel for the Appellant:MR.M.RAMMOHAN Counsel for the Respondent No.: . The Court Delivered the Following JUDGEMENT:-- HONOURABLE SRI JUSTICE A.GOPAL REDDY SA No.596/2009 ORAL JUDGMENT Plaintiff is in appeal challenging the judgment and decree passed by the IV Additional District Judge (FTC) Kakinada, FAC of VII Additional District Judge (FTC) Kakinada, East Godavari District dated 13-10-2008 in A.S.No.115/2004 whereby learned Judge allowed the appeal filed by the first defendant and set aside the judgment and decree passed granting specific performance of agreement of sale in favour of the plaintiff in O.S.No.36/2001 dated 26-3-2004 by the I Additional Senior Civil Judge, Kakindada. For the sake of convenience, the parties herein are referred to as they were arrayed before the trial Court. The plaintiff instituted the suit for specific performance of oral agreement of sale entered between the parties on 18-1-2001 for sale of Ac.1- 62 cents situate in Thimmapuram village, locally known as Seetamma Manyam, as described in the plaint schedule for a total consideration of Rs.3 lakhs. Pursuant to the oral agreement, the first defendant received Rs.2 lakhs and delivered the title deed in respect of the plaint schedule property to the plaintiff in the presence of elders. In acknowledging the receipt of Rs.2 lakhs the first defenant issued a receipt under Ex,.A-3 on 19-1-2001. Ever since entering into the oral agreement with the first defendant, the plaintiff is always ready and willing to obtain a registered deed by paying the balance of sale consideration. The plaintiff also made a request to the first defendant to execute the sale deed in terms of the oral agreement after receiving the balance of sale consideration but she went on to postpone the same on one pretext or the other. Hence, the suit. The first defendant filed a written statement while admitting the relationship between the parties and denying the plaint averments stated that the title deed with regard to plaint schedule property was left over in the family house of her husband and since the plaintiff happened to be a member of that family, he came into possession of it and taking advantage of it, he invented the story of oral agreement. She denied the finalization of oral agreement on 18-1-2001. If the agreement of sale entered on 18-1-2001, what made the plaintiff to deposit the amount in his bank account and withdrew it on 19-1-2001 and the same is only to create evidence for the suit, but she did not receive any amount from the plaintiff towards advance of sale consideration, and prayed for dismissal of the suit. The second defendant who was impleaded as per orders passed in IA No.210/2001 dt. 7-8-2002 remained ex parte. On the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff is entitled for specific performance of contract as prayed for? 2. To what relief? In order to prove the respective pleas, the plaintiff himself examined as P.W.1 and examined attestors and scribe of Ex.A-3-receipt as P.Ws.2 to 4 and marked Exs.A-1 of A-5. On behalf of the defendants, the first defendant herself examined as D.W.1 besides D.W.2. No documents were marked on behalf of the defendants. The trial Court after considering the oral and documentary evidence, decreed the suit of the plaintiff with a direction to the first defendant to execute a regular sale deed in favour of the plaintiff within two months from the date of judgment after receiving the balance of sale consideration with interest at 12% per annum from 19-1-2001 and in default the plaintiff is at liberty to get the sale deed through the process of law. Aggrieved by the judgment and decree, the first defendant carried the matter in appeal. During the pendency of the appeal, the first defendant died, her daughter, Saila Lakshmi, was brought on record as LR of D-1 as per orders of the court dt. 27-7-2007 passed in IA No.921/206. On appeal being filed, the lower appellate Court, after re-appreciating the entire evidence, while holding that there was no love between the parties for more than 17 years as they are fighting for the suit laid by the husband of the first defendant for partition of properties against the father of the plaintiff, Veeraju. It was hotly contested by late Veeraju, after his death, the plaintiff. OS No.40/83 was decreed for partition with mesne profits and ultimately the first defendant made to execute two registered sale deeds on 1-11-2000 for sale of her 7/8th share in the house property and 8/21st share in the landed property for less than the market value, that too by foregoing the mesne profits which she is entitled under the decree, which fact has not been denied by the plaintiff, therefore, it was deemed to have been admitted. In view of the same, the first defendant agreeing to sell Ac.1-62 cents in favour of the plaintiff cannot be believed and Ex.A-3 on which much reliance is placed do not support the case of the plaintiff, allowed the appeal setting aside the judgment and decree granted in favour of the plaintiff by the trial court and consequently dismissed the suit of the plaintiff. Sri M.Ram Mohan, learned counsel for the appellants strenuously contends that once the trial court accepted the oral agreement and payment of Rs.2 lakhs under Ex.A-3 it is for the defendant No.1 to explain for what purpose she received the amount and in the absence of the same, the claim of the plaintiff ought to have accepted, therefore, the lower appellate court is not justified in allowing the appeal and dismissing the suit of the plaintiff. The first defendant in her written specifically stated that her husband, late Shankar Rao and late Veerraju, the father of the plaintiff, are uterine brothers and her husband, Shankara Rao, laid a suit OS No.40/83 for partition of family properties, which was hotly contested by late Veerraju up to the High Court level and after his death, the present plaintiff and ultimately the said suit was decreed for partition. Subsequent to the decree, she (first defendant) was forced to execute two sale deeds in respect of 7/18th share in the house property and 8/21st share in the landed property on 1-11-2000 and she was forced to forego mesne profits granted in the suit. The lower appellate court rightly observed that since no rejoinder has been filed denying the said facts, the pleadings of the first defendant made in the written statement, are deemed to have been admitted by the plaintiff. We have also verified Ex.A-3-receipt as was done by the lower appellate court to know the contents. Even according to the evidence of P.Ws.1 to 4, the transaction under Ex.A-3 was took place at the Registrar’s Office on a plain white paper. But recitals in Ex.A-3 do not contain any reference about the agreement entered by them for sale of the suit schedule property, nor any oral agreement of sale on the said date. What all Ex.A-3 refers is as per settlement between the parties on 18-1-2001 in the presence of mediators, first defendant received a sum of Rs.2 lakhs and agreed to receive balance amount of Rs.1 lakh out of Rs.3 lakhs within two months from the date of agreement ie., 19-1- 2001 and the plaintiff agreed to pay the balance of Rs.1 lakh within two months. There is no specific mention that defendant No.1 received Rs.2 lakhs towards the sale consideration of the suit schedule property, but the fact remains that the parties are fighting for division of the properties since last 17 years and in fact the suit was decreed for mesne profits. It also appears for payment of mesne profits, Rs. 3 lakhs might have been agreed to be paid by the plaintiff and out of it he paid Rs.2 lakhs, but the first defendant denied about receipt of the said amount. Further the lower appellate court rightly held that when the plaintiff pleaded that there was an agreement for purchase of property on 18-1-2001 and when the amount was available with him, no explanation is forthcoming as to why the amount has not been paid on the said date but the remittance of Rs.2 lakhs by the plaintiff into his bank account on 18-1-2001 and its withdrawal on 19-1-2001 is nothing but with an intention to create evidence as if he was having cash of Rs.2 lakhs by the date of alleged oral agreement and paid the said sum to the first defendant by withdrawing from the bank on the next day to prove the receipt said to have been given by the first defendant. In view of the same, the plaintiff is not entitled to a decree for specific performance of agreement of sale nor for refund of the amount. The findings recorded by the lower appellate court are based on appreciation of evidence, particularly interpretation of the documents, and cogent reasons were assigned for coming to such conclusion, which do not suffer from any manifest illegality. Therefore, I do not find any question of law, much less substantial question of law arises for consideration in the second appeal. The second appeal is accordingly dismissed at the admission stage. ______________ A.GOPAL REDDY,J Dt.7-8-2009 kmr To 1.I Additional Senior Civil Judge, Kakinada 2.VII.ADDL.DISTRICT COURT(FTC) KAKINADA 3.2 CD copies