HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2077 OF 1991 JUDGMENT: The 2nd defendant in O.S.No.82 of 1980 on the file of the Subordinate Judge, Chirala, is the appellant herein. 2. The suit was one filed for declaration of title of the plaintiffs over the schedule property. 3. According to the case of the plaintiffs, the property belonged to the 1st defendant and they have purchased the property under registered sale deeds dated 14.04.1980 and the consideration was paid towards the discharge of the liabilities of the 1st defendant. Defendants 2 to 4 are the tenants under the 1st defendant, they promised to vacate the premises but they did not do so. When a notice was given, the 2nd defendant claimed that he has purchased the property from the 1st defendant under a contract of sale dated 01.02.1978 for a consideration of Rs.22,000/-. Therefore, the suit is filed for possession of the property and declaration of title. 4. The 1st defendant remained ex parte and the 2nd defendant filed written statement contending that he was a tenant of the 1st defendant till 01.02.1978 and he has purchased the property for a valuable consideration of Rs.22,000/- on 01.02.1978 and he has been in continuous possession and enjoyment of the property and therefore, he is the owner of the property. The allegations that the plaintiffs 1 and 2 have purchased the property and they are the owners of the property are not true. Defendants 5 and 6 also filed a memo adopting the written statement of the 2nd defendant, who came on record subsequently and defendants 3 and 4 remained ex parte. 5. On the basis of the above pleadings, the following necessary issues have been framed by the trial Court, for trial: 1) Whether the alleged purchase of the schedule house by the 2nd defendant from the 1st defendant on 01.02.1978 is true? 2) Whether the sale deeds dt.14.04.1980 in favour of the plaintiffs executed by the 1st defendant are collusive, nominal and fictitious? 3) Whether the plaintiffs are not entitled to declaration of their title and consequential possession of the suit house as prayed for? 4) Whether the plaintiffs are not entitled to the rents from the defendants 2 to 4 as prayed for? 5) To what relief? 6. On behalf of the plaintiffs, PWs.1 to 7 were examined and marked Exs.A.1 to A.23, Ex.C.1 and Ex.X.1. On behalf of the defendants, DWs.1 to 8 was examined and marked Exs.B.1 to B.25. 7. After considering the evidence on record, the learned Subordinate Judge, Chirala, decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the present appeal is filed by the 2nd defendant. 8. The points that arise for consideration are: 1) Whether the plaintiffs are the owners of the suit schedule property? 2) Whether the title set up by the 2nd defendant is valid? 3) Whether the Judgment and decree passed by the learned Subordinate Judge, Chirala, is legal and sustainable? 9. POINTS: There is no dispute about the fact that the property belonged to the 1st defendant and it is said to have been sold under a consideration of Rs.29,000/- in favour of plaintiffs 1 and 2 on 14.04.1980. Exs.A.1 and A.2 are registered sale transactions and in support of payment of the consideration the plaintiffs are relied upon Exs.A.3 to A.8. On the other hand, it is the contention of the 2nd defendant that on 01.02.1978 the property was sold by the 1st defendant for a consideration of Rs.22,000/-. 10. The question before the Court is whether the claim of the 2nd defendant that the contract of sale as pleaded by him is true. Evidently, after the institution of the suit by the plaintiff and till this day when the contract of sale was disputed, the 2nd defendant has not filed any suit for specific performance of the contract of sale under Ex.B.2 and he also did not make any effort to get the registered sale deed. On the other hand, the owner of the property, who is the 1st defendant, was examined as PW.6 and his evidently clearly goes to show that he has executed Exs.A.1 and A.2 and there was a decree debt obtained by the 2nd defendant in O.S.No.69 of 1979 and he discharged the decree debt and Ex.A.3 is the certified copy of the Full Satisfaction Memo. From out of the consideration received from the plaintiffs, he also claims to have discharged the other debts. He also claims to have executed another agreement in favour of Kota Anjaneyulu, which was subsequently cancelled. He claims that the 2nd defendant is a tenant. He denied having executed the agreement of sale Ex.B.2. In cross-examination also he has specifically stated that he did not sell the property to the 2nd defendant. But, he however admitted that Ex.B.1 is his original sale deed in the name of his mother. His evidence does not disclose that he had played into the hands of the plaintiffs to defeat the rights of the 2nd defendant. In fact, according to him, the 2nd defendant expressed his incapacity to purchase the property when he offered to sell. Evidently, as per the evidence of DW.1, who is the 2nd defendant, the agreement of sale Ex.B.2 was executed at Vetapalem. But, in his evidence or in the written statement no reason was given for not obtaining the registered sale deed. Evidently, the 2nd defendant claims to have filed the suit O.S.No.16 of 1978 against the 1st defendant in January, 1978 and got the suit properties attached. If really the 2nd defendant intended to purchase the property the consideration should include the decretal amount due to him in the above suit. But, however under Ex.A.3 the debt is said to have been discharged by the plaintiffs and it was proved by the evidence of the fingerprints expert DW.7. This circumstance itself clearly throws any amount of doubt about the Ex.B.2 agreement of sale. Apart from the reliability of the other evidence adduced by the defendants, it is needless to say that the plaintiffs have got title to the property, whereas the 2nd defendant has not pursued any remedies under the agreement of sale, which was claimed by him. The lower Court considered the entire material on record and came to the conclusion that the agreement is not true since the owner of the property is also disputing the agreement. If really the appellant is a purchaser he should have instituted a suit for enforcement of the contract of sale and therefore, he cannot deny the title or interest of the plaintiffs. There are absolutely no merits in the appeal and the appeal is liable to be dismissed. Points are answered accordingly. In the result, the Appeal Suit is dismissed with costs. _________________________ N.R.L. NAGESWARA RAO, J Date:18.08.2011 INL