THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR A.S.NO.1288 OF 2001 DT.09.07.2010 Between: Koka Venkata Ratna Rao and three others …………….Petitioners Vs. M/s.Vysyaraju Appanna Raju and others …………………..Respondent. JUDGMENT: 1) Aggrieved by the judgment and decree dated 30.03.2001 in O.S.No.32 of 1995 on the file of the learned Additional Senior Civil Judge, Srikakulam, the defendants therein filed this appeal. 2) Brief facts of the case are as follows: The parties would be referred to as they are arrayed in the lower court, for the sake of convenience. Defendant No.2 is the wife of defendant No.1. Defendant No.3 is the daughter of defendant Nos.1 and 2. Defendant No.4 is the purchaser of suit schedule property from defendant Nos.1 to 3. The plaintiff is the registered firm represented by its partner Vysyaraju Vishnumurthy Raju. Defendant No.1 is the owner of the suit schedule property. The suit schedule property is a tiled house to the north of the Grand Trunk Road in Srikakulam. It is at a distance of four yards from the complex of plaintiff. The complex of the plaintiff is known as Raja Complex. PW-1 who is the partner of the plaintiff firm is also the owner of a cosmetic distribution shop at Srikakulam. PW-2 is working as Sweeper in Raja Complex. She is residing in the shop behind Raja Complex building. Her father is a Watchman in the Raja Complex building. According to PW-2, PW-1 is the owner of the Raja Complex building. PW-2 admitted that herself, her husband and father are having livelihood through Raja Complex building. PW-3 is a retired Teacher. He is a licensed document writer. He had written some documents in favour of the plaintiff on the earlier occasion. He had also written documents executed between the plaintiff and the brothers of first defendant. According to PW-3, the plaint schedule property is more advantageous to the plaintiff, since it is only by the side of Raja Complex of the plaintiff. According to PW-3, earlier to the oral agreement, dated 23.04.1995, he had visited the house of defendant No.1 for about three or four times along with PW-1. 3) The specific case of the plaintiff is that on 23.04.1995 at about 7.00 p.m., he along with PW-3 went to the house of defendant No.1 as defendant No.1 sent a message to him through PW-2 that he wanted to sell the suit schedule property. According to PW-1, since three months earlier to that day, deliberations are going on between himself and defendant No.1 and defendant No.2 is also party to those deliberations. He further deposed that after receiving a message, he took along with him an amount of Rs.10,001/-. He further deposed that defendant No.1 and defendant No.2 proposed to sell their house for a sum of Rs.1,50,000/- and that after bargain, the sale consideration was fixed at Rs.1,37,500/- and that he paid Rs.10,001/- to defendant No.2 on the instructions of defendant No.1 and that defendant No.2 received the said amount. He deposed that he agreed to pay the remaining sale consideration amount to defendant Nos.1 and 2 on 25.04.1995 and he obtained the sale deed. According to PW-1, defendant Nos.1 and 2 requested ‘15’ days time in order to vacate the house. Then they agreed to execute an agreement of sale on 24.04.1995 and fixed ‘15’ days time to obtain the registered sale deed. He also deposed that on the same day, he purchased a stamp of one hundred rupee denomination in the name of their firm and debited that amount in the account of their shop. In the day book he had also shown the amount of Rs.10,001/- paid to D-1 and D-2 towards earnest money and also the price of the stamp paper. The daybook entry was carried into the ledger. Ex.A-2 is the daybook entry dated 23.04.1995 at page No.2. The entry is in the name of D-1. Ex.A-3 is the entry in the ledger at page No.10 showing the name of D-1. According to PW-1, on 24.04.1995, he along with PW-3 went to the house of D-1 along with the stamp paper and D-1 informed that his brother wanted to purchase the property and prepared to refund the earnest money paid by PW-1. PW-1 did not agree for the same. D-1 informed that on the next day evening i.e., 25.04.1995 he would settle the matter, but on 25.04.1995 D-1 did not send a word to PW- 1. Therefore, PW-1 perceived that D-1 is not prepared to sell the property to him and issued a legal notice to D-1 and D-2 and one Jagannadharao, who is the brother of D-1, on 26.04.1995. Ex.A-4 is the notice. Exs.A-5 to A-7 are the postal acknowledgments. Jagannadharao-brother of D-1 issued a reply vide Ex.A-8 informing that he was not interested to purchase the property. D-1 and D-2 gave a reply denying the oral agreement in Ex.A-9. Then the plaintiff’s partner made Ex.A-10 protest petition before the Sub-Registrar. It is also their case that there was no sale deed executed in favour of D-4 by the date of filing of the suit, but subsequently sale deed was executed in favour of D-4 and therefore, they impleaded D-4 as a party to the suit. Then the plaintiff filed a suit for specific performance of agreement of sale, dated 23.04.1995 contending that the oral agreement, dated 23.04.1995 had been validly concluded. The plaintiff also sought a direction to the defendants to execute a sale deed in their favour and to put the plaintiff in possession of the plaint schedule property or in the alternative to return the advance amount of Rs.10,001/- with interest at 18% per annum. 4) The first defendant filed a written statement, which has been adopted by defendant Nos.2 and 3. The defendants specifically denied the plaint averments that there was an oral agreement between the plaintiff and defendant on 23.05.1995 and that the first defendant agreed to sell the property for a consideration of Rs.1,37,500/-. It is also specifically denied that the first defendant received Rs.10,001/- towards advance consideration and agreed to execute a registered sale deed in favour of the plaintiff on or before 08.05.1995. Even the alleged agreement between the plaintiff and defendants dated 23.04.1995 has been specifically denied. The specific case of the first defendant is that he never agreed to sell the plaint schedule property to the plaintiff for Rs.1,37,500/-. He subsequently executed the registered sale deed dated 18.05.1995 and delivered possession to defendant No.4. The specific case of the first defendant is that plaintiff who had constructed a commercial complex is very rich and powerful merchant in Srikakulam Town and he filed a suit to grab the plaint schedule property. 5) The fourth defendant also filed a separate written statement contending that he has purchased the plaint schedule property for Rs.1,50,000/- and that he has paid advance of Rs.30,001/- on the date of agreement i.e., on 26.04.1995 and subsequently, the defendant Nos.1 to 3 executed a registered sale deed, dated 26.05.1995. 6) On behalf of the plaintiff, the partner of the plaintiff firm is examined as PW-1 and PWs.2 and 3 were examined and Exs.A-1 to A-17 were marked. On behalf of the defendants, the second defendant was examined as DW-1 and defendant No.4 was examined as DW-4 and one B.Satyanarayana was examined as DW-3 and Exs.B-1 to B-3 were marked. 7) The main contention of the learned counsel for the appellant Sri P.Veera Reddy is that the lower court ought to have seen that there is no concluded oral agreement between the plaintiff and defendant No.1 on 23.04.1994 and if the first defendant agreed to sell the plaint schedule property, he would not have issued reply in Ex.A-9 categorically denying the oral agreement. It is also submitted that DW-4 is working as Sweeper under PW-1 and that PW-3 is a document writer of PW-1 and that they are interested witnesses. It is further submitted that when the plaintiff had made entries in the daybook, ledger book and purchased stamp papers and also secured the presence of PW-3 a document writer, nothing prevented the plaintiff from seeking written agreement from the defendant Nos.1 and 2. It is his submission that the evidence of PWs.1 to 3 cannot be relied upon and that with a view to grab the property, the plaintiff filed the present suit. It is further submitted that it is most un-natural to say that PW-1 did not obtain any receipt having paid an amount of Rs.10,001/- to the second defendant. It is also submitted that EXs.A-2 and A3 are certain entries created by the plaintiff and therefore, the lower court committed a mistake in relying on those entries. He also submits that non-examination of D-1 is not is not fatal to the case of the defendants and that the lower court has given unnecessary importance to the issue of non-examination of D-1. 8) The learned counsel for the respondent submitted that they concluded agreement dated 23.04.1995 and that the plaintiffs have paid Rs.10,001/- to defendant No.1 as advance sale consideration; that after securing the consideration amount of Rs.1,37,500/-, the plaintiff in good faith did not obtain receipt from the defendant Nos.1 and 2 and that the subsequent event of issuing legal notice and making entries in the ledger book and daybook proves the case of the plaintiff. 9) The only point that arises for consideration is whether the version of the plaintiff that ‘there was an oral agreement’ can be accepted. 10) It has to be seen that PW-1 is a partner of the plaintiff firm. According to PW-3, the plaintiff was interested to purchase the property and that even according to PW-1 three months prior to 23.4.1995, there were deliberations between himself and defendant Nos.1 and 2. This shows that the plaintiff was interested to purchase the plaint schedule property. Admittedly, plaintiff has purchased the properties from the brothers of defendant No1. Admittedly, the property is just at a distance of four yards from the Raja Complex of the plaintiff. According to PW-1, PW-2 approached him and informed that D-1 was intending to sell the property. Again he deposed that he took an advance of Rs.10,001/- and secured the presence of PW-3, who is a document writer and went to the house of defendant Nos.1 and 2. It is also his case that on the same day he purchased a stamp of hundred-rupee denomination in the name of the plaintiff firm and made entries in the daybook and also in the ledger. He further deposed that he has paid earnest money of Rs.10,001/- to defendant No.2 as per the instructions of defendant No.1. When PW-1 had taken a document writer along with him, nothing prevented PW-1 from obtaining a receipt from defendant Nos.1 and 2 and from obtaining the agreement of sale from them. The whole story appears to be a created one. It has to be seen that PW-2 categorically deposed that she is working as a Sweeper in the Raja Complex building and her father is a Watchman in the Raja Complex building. PW-2 categorically admitted that herself and her father are having livelihood through Raja Complex buildings. Thus it is clear that she is solely dependant on the plaintiff’s firm. She cannot depose against the word of the plaintiff (PW-1) and therefore, she cannot be treated as an independent witness. Since PW-3 is concerned, he is also an interested witness. He had also executed documents in favour of the plaintiff firm. On certain occasions, he had deliberations between the plaintiff and the brothers of D-1. Thus it is clear that PWs.2 and 3 cannot be treated as independent witnesses. They are henchmen of the plaintiff and all of them have created the oral agreement only to grab the property of the defendants. Though entries have been made in the ledger book and also in the daybook and when a stamp paper was purchased, in all probabilities and in all fairness, PW-1 would have certainly obtained a receipt from the defendants 1 and 2, particularly when the document writer accompanied him. It has to be seen that the plaintiff has not filed the stamp paper said to have been purchased by him. It is surprising to note that when a stamp paper was purchased and entries were made in the ledger book and day book, PW-1 did not obtain any receipt from DW-1 or D-1. In view of the above discussion, I hold that the whole approach of the lower court in appreciating the evidence is not correct. The lower court has failed to consider the normal human conduct and the facts and circumstances. Even if it is agreed that there are some discrepancies in the evidence of defendants or the first defendant was not examined on the ground of illness, that cannot be a ground to decree the suit of the plaintiff. 11) In view of the above discussion, I hold that the judgment of the lower court appears to be based on unreasonable conclusions and the same is liable to be set aside. 12) Accordingly, the decree and judgment of the lower court in O.S.No.32 of 1995 is set aside and the appeal is allowed. Consequently, the suit is dismissed with throughout costs. __________________ B.CHANDRA KUMAR J., Dt.09.07.2010 tjs