IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.304 OF 2010 Between: Sri S. G. Bhagavantha Reddy .....APPELLANT AND Sri V. Laxminarayanaiah ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.304 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree, dated 04.11.2008, in Appeal Suit No.3 of 2006, on the file of the Senior Civil Judge, Hindupur, whereunder and whereby, the judgment and decree, dated 28.11.2005, in Original Suit No.203 of 1999, on the file of the Junior Civil Judge, Hindupur, decreeing the suit filed for specific performance with costs by directing the appellant/defendant to execute registered sale deed in terms of Ex.A1 within three months from that date and the respondent/plaintiff to deposit the balance of sale consideration within twenty days from that date, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The plaintiff filed the suit stating as follows: The defendant is the owner of the plaint schedule property. He agreed to sell the said property and the plaintiff accepted to purchase the same for a sum of Rs.80,000/-. On 08.07.1999, the defendant had taken Rs.73,000/- as advance and executed agreement of sale, Ex.A1, in favour of the plaintiff. The remaining balance of sale consideration has to be paid by the plaintiff within one year and on such payment, the plaintiff has to obtain the registered sale deed. Subsequently, though the plaintiff is willing to perform his part of contract, the defendant failed to perform his part of contract to execute a registered sale deed by receiving balance of sale consideration. So, the plaintiff got issued notice on 20.08.1999. The defendant gave reply on 23.08.1999 with false allegations. Hence, the suit to direct the defendant to execute the registered sale deed by receiving balance of sale consideration. 4. The defendant filed written statement stating that the allegations mentioned in the plaint that the defendant agreed to sell the plaint schedule property to the plaintiff for a sum of Rs.80,000/-; the execution of agreement of sale, Ex.A1, by the defendant by taking advance of Rs.73,000/- and that the registered sale deed has to be executed within one year from the date of agreement of sale by taking the balance of sale consideration, are not correct. It is further stated that the defendant is a cement dealer. The plaintiff is a wholesale dealer having shops at Lepakshi and Gowribidanur. The defendant used to purchase cement from the plaintiff on credit basis and sell the same at Bangalore. During those transactions, the defendant fell due a sum of Rs.73,000/- to the plaintiff. The plaintiff with his rowdy followers obtained the signatures of the defendant on a stamp paper by force. It is further stated that the plaint schedule property is situated nearby the site belonging to his wife. The suit property was constructed by the wife of the defendant with the financial help of her parents. As per the agreement of sale, one year time was mentioned to execute the registered sale deed, but within two months, the plaintiff had issued notice. It itself shows that the agreement of sale is not genuine. There is no cause of action and therefore, the defendant prays to dismiss the suit. 5. Basing on the above pleadings, the following issues are framed by the trial Court: “1. Whether the plaintiff is entitled to specific performance of agreement of sale D/8-7-1999? 2. To what relief?” 6. During trial, PWs.1 to 3 were examined and Exs.A1 to A3 were got marked, on behalf of the plaintiff, and on behalf of the defendant, DWs.1 and 2 were examined, but no documentary evidence was marked. 7. The trial Court, placing reliance on the evidence of PWs.1 to 3 and DW.2, decreed the suit. On appeal, the appellate Court confirmed the same. Challenging the same, the present Second Appeal is filed by the defendant. 8. According to the learned counsel for the appellant/defendant the substantial questions of law are whether the unregistered agreement of sale, dated 08.07.1999, is admissible in evidence, when the agreement of sale is compulsorily registerable document in view of amendment to Section 17 of the Registration Act, 1908, (for short, “the Act”), but not registered, and whether the plaint schedule property is different from the property to which the respondent/plaintiff obtained an agreement of sale and hence, he prays to admit the Second Appeal and to set aside the impugned judgment. 9. On the other hand, learned counsel for the respondent/plaintiff contended that as the execution of Ex.A1 was admitted, the trial Court rightly decreed the suit and the same was rightly affirmed by the appellate Court; that the concurrent findings of both the Courts below need not be interfered with and hence, he prays to dismiss the appeal. 10. The suit is filed for enforcement of contract basing on Ex.A1 - agreement of sale, dated 08.07.1999, said to have been executed by the defendant in favour of the plaintiff. The initial burden is on the plaintiff to show that the defendant executed Ex.A1 in his favour. The plaintiff examined himself as PW.1. The evidence of PW.1 would clearly go to show that the defendant agreed to sell the house with RCC roof and open place and he accepted to purchase the same for consideration of Rs.80,000/-; that he gave an amount of Rs.73,000/- as advance on 08.07.1999; and that the defendant executed Ex.A1- agreement of sale in his favour. The defendant examined himself as DW.1. He admitted his signature in Ex.A1 in the first sheet and last sheet. PWs.2 and 3, who are the scribe and attester of Ex.A1, also spoke about the execution of Ex.A1 by the defendant by receiving advance amount of Rs.73,000/- from the plaintiff. Similarly, DW.2, who is another attester of Ex.A1, stated that Ex.A1 was executed by the defendant in favour of the plaintiff after receiving a sum of Rs.73,000/-. So, the initial burden placed on the plaintiff is discharged. 11. The case of the appellant/defendant is that in respect of the business transaction between him and the respondent/plaintiff, he became due to the plaintiff to a tune of Rs.73,000/-; that in respect of the said transaction, the plaintiff came to his house and obtained his signature on stamp and white paper by force and created Ex.A1. That evidence is not supported by any other evidence. There is no need for the defendant to sign on the alleged blank stamp papers, when an amount of Rs.73,000/- was due by him to the plaintiff in connection with the cement business. The said fact that he was doing any business in cement has been specifically denied by the plaintiff. So, the question of due of any amount by the defendant to the plaintiff in connection with the cement business does not arise. Even otherwise, the finding of both the Courts below is based upon proper appreciation of evidence on record. The only substantial question of law raised by the appellant/defendant is that whether Ex.A1 was unregistered and it can be relied upon. 12. No doubt, under Section 17 (1) (g) of the Act, an agreement of sale of immovable property of value of Rs.100/- and upwards is compulsorily registerable. But, Section 17 (1A) of the Act reads that “the document containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882, (4 of 1882) shall be registered if they have been executed on or after commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said Section 53-A;”. Section 53-A of the Transfer of Property Act, 1882 (for short, “TP Act”), reads as follows: “Part performance.- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” The ingredients under Section 53-A of the TP Act are (1) Any person contracts to transfer for consideration any immovable property in writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty and (2) The transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract. The necessary ingredients under Section 53-A of the TP Act apply to the present facts of the case. Therefore, by virtue of Section 17 (1A) of the Act, a document containing contract to transfer immovable property covered under Section 53-A of the TP Act shall be registerable only after 2001. Admittedly, the agreement of sale under Ex.A1 was executed by the defendant in favour of the plaintiff on 08.07.1999. Therefore, by the date of execution of Ex.A1, the question of registration as required under Section 17 (1) (g) of the Act does not arise. Section 17 (1) (g) of the Act has to be read in consonance with Section 17 (1A) of the Act in juxta position as they have got to be. If these two provisions are read together, it is clear that the document Ex.A1 need not be registered as on the date of its execution. Therefore, the point raised by the learned counsel for the appellant/defendant that Ex.A1 was unregistered and it cannot be relied upon, cannot be said to be a substantial question of law. In the absence of any substantial question of law, the question of admission of the Second Appeal does not arise. Hence, there are no grounds to interfere with the impugned judgment and decree. 13. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C. BHANU, J January 31, 2011 MD THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.304 OF 2010 January 31, 2011