IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH SECOND APPEAL NO : 317 of 2009 (Appeal under Section 100 of CPC against the decree dated 05/08/2008 in AS No. 114 of 2005 on the file of the Court of VII ADDL.DISTRICT COURT(FTC),MADANAPALLE preferred against the decree dated 02/07/2004 in OS No. 46 of 1987 on the file of the court of Senior Civil Judge, Madanapalle) Between: 1 M.Mahaboob Katum W/o. Mohammad Yusuf Living by trade, R/o. Eswaramma Indlu, Pechupadu Road, Madanapalle, Cittoor District. 2 M.Khader Bi @ Harjam Bee @ Beebi ( Since Died ) ..... APPELLANTS AND Soore Revathamma W/o. S,Narasimhaiah R/o. No. 5/195, Poola Veedhi Madanapalle Town, Chittoor District. .....RESPONDENT Counsel for the Appellant: MR.K.R.SASIDHARAN NAIR Counsel for the Respondent: The Court Delivered the Following JUDGEMENT:-- Form-NIC-OGS/SA{KSRANI} THE HON'BLE SRI JUSTICE V.ESWARAIAH SECOND APPEAL No.317 of 2009 JUDGMENT: The appellants are the defendants 2 and 4 in the suit O.S.46/1987 filed by the respondents herein on the file of the Senior Civil Judge, Madanapalle for specific performance of Ex.A1 agreement of sale dated 04.03.1983. The said suit was decreed by judgment and decree dated 02.07.2004 in favour of the respondent/plaintiff. Aggrieved by the same, the appellants herein filed A.S.114/2005 before the VII Addl.District Judge, Madanapalle. The lower appellate Court by judgment dated 05.08.2008 dismissed the appeal confirming the judgment and decree of the trial Court. Aggrieved by the same, this second appeal is filed. 2. Defendants 1 and 2 entered into Ex.A1 agreement of sale on 04.03.1983 with the plaintiff to sell the suit schedule property for a sum of Rs.19,000/- in favour of the plaintiff and received a sum of Rs.6,000/- as advance and the balance amount of Rs.13,000/- is payable at the time of registration of the sale deed. Thereafter, an amount of Rs.2,000/- was paid under Ex.A2 endorsement dated 21.03.1983 and another payment of Rs.2,000/- made under Ex.A3 endorsement dated 30.05.1983 on the reverse of the Ex.A1 agreement of sale. It is stated that though a sum of Rs.10,000/- was paid out of total sale consideration of Rs.19,000/-, the balance sale consideration of Rs.9,000/- was not paid on the ground that the defendants 1 and 2 have not removed the hut from the suit property as per the terms of the Ex.A1 agreement of sale before executing the sale deed and thereafter to receive the balance sale consideration. But contrary to the said agreement, it is stated that defendants 1 and 2 sold half of the suit schedule property in favour of the 3rd defendant under Ex.A7 registered sale deed dated 09.02.1987. 3. The 1st defendant died and his legal heirs were brought on record as defendants 4 and 5, and the 5th defendant also died. It was the case of the plaintiffs that transfer of the half of the schedule property in favour of the 3rd defendant was collusive one and brought into existence without any consideration. The case of the 3rd defendant is that the sale deed obtained by him is not sham and nominal, and it is genuine document and that there was no any collusion and in fact, the agreement of sale and the two subsequent endorsements i.e. Exs.A1 to A3 are brought into existence and they are not genuine documents. 4. The trial Court held that the signatures of the defendants 1 and 2 on Exs.A1 to A3 are genuine and the 2nd defendant also admitted the said fact. The trial Court on appreciation of the oral and documentary evidence held that there was no any breach of terms of the contract by the plaintiff and the contract was never repudiated by the plaintiff and the plaintiff was always ready and willing to perform her part of contract. The trial Court also held that the claim of the 3rd defendant about the right and title based on Ex.A7 sale deed executed by the 1st defendant is not bona fide or in good faith and the 3rd defendant is also not a bona fide purchaser and therefore, the sale deed executed in his favour is not valid and binding on the plaintiff and defendants 1 and 2. The trial Court accordingly held that the plaintiff is entitled for specific performance of the agreement of sale. However, the plaintiff is not entitled for any special damages. Accordingly, the suit was decreed with proportionate costs in favour of the plaintiff and against the defendants, directing defendants 2 to 4 to execute a registered sale deed in favour of the plaintiff in respect of the plaint schedule property after depositing the balance sale consideration of Rs.9,000/- by the plaintiff within one month from the date of judgment i.e. from 02.07.2009, and if defendants 2 to 4 fail to execute the registered sale deed in favour of the plaintiff, the plaintiff is at liberty to get the sale deed to be executed through the Court. 5. Though the decree was passed against defendants 2 to 4, i.e. the original owners, their legal heirs and the so called subsequent purchaser 3rd defendant, the appeal in A.S.No.114/2005 was filed by defendants 2 and 4 alone but not by the 3rd defendant, which goes to show that the findings of the trial Court holding that the sale deed made in favour of the 3rd defendant is sham and nominal and the 3rd defendant would not acquire any right or title over the said property by way of Ex.A7 sale deed holds good. The lower appellate Court re- appreciated the entire evidence available on record and rightly observed that the appeal was filed by the 2nd defendant and the legal heir of the 1st defendant i.e. 4th defendant alone, but not by the 3rd defendant who is stated to be subsequent purchaser of half of the suit schedule property subsequent to the Ex.A1 agreement of sale. The lower appellate Court formulated the following points for consideration; 1. Whether the time is the essence of the contract, if so, the repudiation and recession of the said contract that follows; and 2. Whether the 3rd defendant is the bona fide purchaser of half of the suit schedule property for valid consideration and without notice. 6. On re-appreciation of the oral and documentary evidence, the lower appellate Court held that the evidence available on record goes to show that defendants 1 and 2 were under obligation to remove the round hut within stipulated period of three months from the date of Ex.A1 agreement of sale, but the said hut was not removed. Though the plaintiff paid a sum of Rs.10,000/-, the balance amount of Rs.9,000/- could not be paid as defendants 1 and 2 failed to remove the hut before insisting payment of balance sale consideration. In fact, when defendants 1 and 2 issued Ex.A4 legal notice after about one year of the agreement of sale, the plaintiff responded after one year only in sending the reply on the ground that the hut was not removed and thus, the lower appellate Court held that the defendants have enlarged the time for performance of their part of the contract. As long as the hut was not removed, the defendants are not entitled to receive the balance sale consideration. The lower appellate Court relying on various judgments and based on the evidence available on record held that the plaintiff was always ready and willing to perform her part of contract. It is not the case of the defendants that the plaintiff is not having sufficient money to pay the balance sale consideration of Rs.9,000/- therefore, there cannot be any justification on the part of defendants 1 and 2 in transferring half of the suit schedule property in favour of the 3rd defendant under Ex.A7 sale deed which was held to be sham and nominal, and accordingly held that the plaintiff is entitled for discretionary relief of specific performance of the contract and accordingly dismissed the appeal. 7. The fact that the 3rd defendant did not file any appeal against the judgment and decree of the trial Court and hence the said judgment and decree of the trial Court has become final in so far as the 3rd defendant is concerned. 8. The learned counsel for the appellants submits that time is the essence of the contract stipulating three months period for payment of the balance sale consideration and issuance of Ex.A4 notice is 19.04.1984 and the suit was filed on 01.04.1997 and therefore, the Courts below are not justified in decreeing the suit for specific performance. Both the Courts below held that the time as stipulated under Ex.A1 was enlarged and defendants 1 and 2 failed to remove the hut and therefore, the balance sale consideration could not be paid. As the hut was not removed the time gets enlarged and as the plaintiff was ready and willing to perform her part of contract, it cannot be said that the Courts below are not justified in decreeing the suit. 9. In so far as the second question raised by the appellants with regard to repudiation and the recession of the Ex.A1 agreement of sale is concerned, on appreciation of the evidence available on record, both the Courts below held that there was no any repudiation or recession of the suit agreement as pleaded by the 2nd defendant and as the defendants failed to remove the hut, the amount paid by the plaintiff cannot be forfeited and the agreement will not come to an end. 10. In view of the concurrent findings of both the Courts below, I do not see any question of law much less substantial question of law that arises for consideration in this second appeal. 11. Accordingly, the Second Appeal is dismissed at the stage of admission. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 21.08.2009 Dsr