THE HON’BLE SRI JUSTICE B PRAKASH RAO SECOND APPEAL NO. 720 OF 1995 JUDGMENT : The appellant herein is first defendant, files this appeal under Section 100 of Civil Procedure Code, seeks to assail the correctness of the judgment and decree in A.S.No. 52 of 1994 dated 27th September, 1995 on the file of the Principal Subordinate Judge, Ananthapur allowing the said appeal at the instance of unsuccessful plaintiff and setting aside the judgment and decree in O.S. No. 163 of 1979 dated 29th December, 1988 on the file of Principal District Munsif, Anantapur and decreeing the suit for specific performance of the agreement as laid by the first respondent/plaintiff. In brief, the facts which gave rise to the present proceedings are that according to the plaintiff, he entered into an agreement of sale executed by the first defendant on 22.12.1969 agreeing to sell the suit property for a valid consideration of Rs.2,600/- of which a sum of Rs.200/- was paid in advance and promising that his other brother Mr.Kesava Rao, to be executed at later stage as a party to the agreement and also to the sale transaction finally. Since Mr Kesava Rao, is not available at the relevant point of time, however, as there was no response coming forth from the defendants, he issued a notice dated 19.8.1976 and since the same was not complied, hence the suit. Contesting the same, the case of the appellant was that of total denial and also contended that it was a Shortrium Papampeta, therefore governed under Inam Abolition Act and Estates Abolition Act and since no patta was granted, there is no enforceable right and no relief can be given. That apart, the other brother is not signatory to the said agreement, therefore the suit agreement is not enforceable, apart from the other pleas which the appellant taken in regard to the bar of limitation and also failure on the part of the plaintiffs always not being ready and willing to perform their part of contract, hence, the suit is liable to be dismissed. Further there has been a long delay also on the part of the plaintiff in approaching the Court, therefore the suit suffers serious laches on the part of the plaintiff. With these and other pleadings as set forth by the respective parties, the Court below framed the following issues; 1 Whether the suit agreement was executed under the circumstances mentioned in the plaint? 2 Whether the plaintiff is entitled to enforce part of the suit agreement against the defendant? 3 Whether the suit for relief of specific performance is maintainable? 4 Whether the suit is in time. 5 Whether the description of the suit properties is correct? 6 Whether the plaintiff is entitled to the relief of specific performance. 7 To what relief. Subsequently, another two additional issues were framed on 1.7.1983 and 20.11.1987 respectively, as under; 1. Whether the agreement of sale is void and unenforceable as contended by first defendant in para 10 (a) of the written statement. 2. Whether the defendants 2 to 18 are the purchasers with full knowledge of the agreement in favour of the plaintiff. Later, both parties went into trial and plaintiff examined P.W.1 and P.W.2 and marked documents Ex.A1 to A4. The defendant examined himself as D.W.1, and no documentary evidence is adduced. Considering the evidence and material on record, the trial Court did not accede to the relief as sought for by the plaintiff and dismissed the suit mainly holding that the suit agreement is not executed in the circumstances as mentioned by the plaintiff, therefore, he is not entitled for the relief of specific performance. On appeal, the lower Appellate Court on re-appreciation of the evidence and material on record, has came to the varying conclusion, specifically holding that the findings of the trial Court in regard to the doubt as to the circumstances in which the suit agreement came to be existence not being correct, is not correct. Believing the version of P.W.1/plaintiff and P.W.2/scribe, it was held that the suit agreement has been duly executed in the absence of other brother and there is no reason to disbelieve the version of those two. Further, even the evidence of D.W.1 go in support of proving Ex.A1 in favour of the plaintiff agreeing to sell the property. It was also held that Ex.A1 amply shows that first defendant agreed to sell along with his brother, though Ex.A1 does not contain signature of other brother. Ultimately the lower Appellate Court allowed the appeal and decreed the suit to the extent of half share of the plaint schedule. The other objection raised in regard to the correctness of the description of the suit property etc, has been rejected. Hence, the present second appeal. In this appeal, apart from several contentions running on merits, which virtually seeking for re-appreciation, learned counsel for appellants submits that having regard to the nature of the property being Shortrium Papampeta, no patta having been granted, no relief of specific performance can be granted, hence the same is liable to be dismissed. In rebuttal, the learned counsel for the respondent submitted that there is absolutely no bar as such to deny the relief. In support, the learned counsel for appellant relied on Hungerford Investment Trust Limited Vs. Haridas Mundhra[1] , where considering section 35 of the Specific Relief Act, it was held that mere right to take advantage of the provisions of an Act is not an accrued right. The right of the applicant to have the decree rescinded was dependent upon the default of the purchaser in paying the purchase money. Such a default had not occurred when the Specific Relief Act, 1877, was repealed, as a reasonable time for the performance of the obligation under the decree had not elapsed from the date of the decree, particularly when the execution of the decree in the said case was stayed by the orders of the trial Courts. This plea which is sought to be applied in a case of Shortrium Papampeta, therefore no suit could have been entertained. That apart, in Kartar Singh Vs. Harjinder Singh [2] where considering sections 10 and 12 of Specific Relief Act, it was held that the relief of specific relief can be granted in respect of vendor’s share. On a total appraisal of the facts and circumstances, especially the findings of fact as arrived by the lower Appellate Court which I do not find any reason to come to varying conclusion nor any basis to show that the said finding is in any way perverse or not being supported by any evidence or material on record. No other question would arise, especially touching upon the law, much less a substantial question of law. It is not a case of the appellants herein that ultimately no patta was granted nor it is he hold any right, title or interest whatsoever. The right which subsists in favour of the executor of the agreement, certainly opposite party can seek to enforce the agreement which he executed. Further, it is not pointed out during the course of these proceedings all along at any point of time that patta is refused or not granted. Therefore, there exist no merits which warrant interference of this Court under Section 100 of the Civil Procedure Code. There are no merits in the second appeal and accordingly the same is dismissed. No costs. _______________ B PRAKASH RAO,J DATE: 8.10.2010 TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO Pre delivered judgment in SECOND APPEAL NO. 720 OF 1995 [1] AIR 1972 SC 1826 [2] AIR 1990 SC 854