HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.3395 OF 1990 JUDGMENT: The appeal is filed by the appellants/plaintiffs against the judgment in O.S.No.34 of 1983 on the file of the Principal Subordinate Judge, Kakinada. 2. The suit was one filed for specific performance of an agreement of sale, dated 20.12.1976 with regard to an extent of Acs.6.07 Gts., of land situated at Kovvada village and an extent of Acs.6.81 Gts., of land situated at Chidiga village in different survey numbers. 3. According to the case of the plaintiffs, the schedule property was purchased by the defendant on 22.11.1971 from one Yarlagadda Veera Venkata Prabhakara Rao for a consideration of Rs.25,000/- and as there was no sufficient yield he intended to sell the same. The plaintiffs agreed to purchase the said property in the year, 1975 and paid a sum of Rs.7,000/- to Ranganayakamma, the mother of the vendor of the plaintiffs, on 23.04.1975 and subsequently, the plaintiffs made several payments to a tune of Rs.22,000/-. The possession of the property was given in June, 1975. Subsequently, on 20.12.1976 an agreement was entered into after receipt of Rs.5,000/- evidencing the transaction and therefore, only a balance of Rs.3,000/- is to be paid and the defendant agreed to execute the sale deed within three months. Subsequently, the defendant filed O.S.No.877 of 1999 on the file of the Principal District Munsiff, Kakinada, for a permanent injunction and a receiver was appointed and he took possession of the property in May, 1979. Therefore, the suit is filed for specific performance of the contract. 4. The defendant filed a written statement denying the various allegations touching on the agreement of sale. According to the defendant, the property was leased out to the 2nd plaintiff after 1975 on a maktha of 100 bags payable by 15th January of every year and the 2nd plaintiff paid the maktha from January, 1975 to January, 1978 and thereafter committed default and vacated the land in May, 1979. As the 2nd plaintiff threatened to interfere into the land, O.S.No.877 of 1979 on the file of the Principal District Munsiff, Kakinada, was filed and order of injunction was obtained and the 2nd plaintiff filed I.A.No.2383 of 1979 on 23.11.1979 to vacate the injunction order and claimed the agreement of sale, which was denied by the defendant. A notice was given to produce the agreement and it was not immediately produced. The agreement was sent to the expert and it was found to be the forged one. The suit is barred by limitation. Hence, he pleaded for dismissal of the suit. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether there is an agreement to sell the plaint schedule properties to the plaintiff? And whether the agreement of sale dt.20.12.1976 is true? 2) Whether the 2nd plaintiff was a tenant of the plaint schedule land from 1974 till May, 1979? 3) Whether the plaintiffs are in possession of the plaint schedule land in pursuance of the agreement of sale till the date of the appointment of a receiver in O.S.No.877 of 1979? 4) Whether the plaintiffs are entitled to specific performance of sale? 5) Whether the suit is within limitation? 6) To what relief? 6. On behalf of the Plaintiffs, PWs.1 and 2 were examined and marked Exs.A.1 to A.16. On behalf of the defendant, DWs.1 and 2 were examined and marked Exs.B.1 to B.8. Exs.X.1 to X.24 were also marked by the Court. After considering the evidence on record, the learned Principal Subordinate Judge dismissed the suit of the plaintiffs. Aggrieved by the same, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the agreement of sale pleaded by the plaintiffs is true? 2) Whether the plaintiffs are entitled for specific performance of the contract of sale? 8. POINTS: According to the case of the plaintiffs, the sale transaction was started by oral agreement in the year, 1975 and the date of purchase is not mentioned. According to the plaintiffs, a sum of Rs.7,000/- was paid to the mother of the vendor of the plaintiffs and subsequently, payments were made on different dates to a tune of Rs.22,000/- and possession was given in June, 1975 and finally the agreement was entered on 20.12.1976 evidencing the entire transaction, which is marked as Ex.A.1. When once the execution of the said agreement is denied, naturally it is for the plaintiffs to prove the execution of the agreement and also payment of the sale consideration. The plaint is silent as to when part payments were made till the date of Ex.A.1. There is absolutely no reason given as to why part of the consideration shall be paid to the mother of the vendor of the plaintiffs. No receipt was obtained and the presence of any elders at the time of the said oral agreement is also not mentioned. The land was purchased in 1971 and evidently, the defendant has got other agricultural lands and the necessity of selling the property in 1975 on the ground of the land was not yielding much income does not appears to be an acceptable reason. Further, it is the duty of the plaintiffs to prove the particulars of the payments under the contract. No single document is filed to prove the said payments and Ranganayakamma to whom Rs.7,000/- is said to have been paid was also not examined. 9. Evidently, in the year, 1979 the defendant has filed the suit O.S.No.877 of 1979 and then itself the contract of sale was denied by the defendant and a memo was filed for production of the original agreement before the Court. Evidently, from 1976, the alleged date of agreement, till 1979 when the suit was filed by the defendant the plaintiffs have not taken any steps for enforcement of the agreement though the time for stipulation is three months as per Ex.A.1. Further- more, the agreement is said to have been in the name of the 2nd plaintiff but the stamps were purchased in the name of the 1st plaintiff. Even after the stipulation of the time of three months under original agreement and also the denial of the existence of the agreement in the earlier suit, the plaintiffs have not chosen to file the suit for specific performance immediately and it was long after the institution of the suit for injunction. Though a plea was sought to be raised that amount of Rs.7,000/- was paid to Ranganayakamma as the defendant is said to have been indebted to her, there is no proof of the same. The lower Court has also doubted about the capacity of the plaintiffs to purchase the property. The lower Court has also taken into consideration the fact that immediately after the notice for production of the agreement, it was not produced and it was not informed that the agreement is not yet traceable and subsequently only it was produced these are all suspicious circumstances, which throws any amount of doubt about the claim of the plaintiffs on the genuineness of the agreement of sale and passing of the consideration. The learned Judge has considered evidence in right perspective and there are no reasons to interfere with the finding in Judgment of the lower Court. There are absolutely no merits in the appeal. Points are answered accordingly. In the result, the appeal is dismissed. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:17.10.2011 INL