THE HONOURABLE SRI JUSTICE D.S.R.VARMA SECOND APPEAL No.221 of 2009 ORAL JUDGMENT: Heard both sides. 2. This Second Appeal is directed against the judgment and decree, dated 17.04.2008, passed by the II Additional District Judge, Vijayawada, dismissing the appeal A.S.No.164 of 2006, and thereby, confirming the judgment and decree, dated 17.04.2006, passed by the II Additional Senior Civil Judge, Vijayawada, in O.S.No.110 of 2001. 3. Appellant is the unsuccessful plaintiff in both the Courts below and the respondent is the defendant. 4. For the sake of convenience, in this judgment, the parties will be referred to as per their array in the suit. 5. The suit was filed for specific performance of the contract of sale, dated 15.12.1974, directing the defendant to execute and register a proper sale deed in favour of the plaintiff or plaintiff’s nominee or nominees at their expenses or in the alternative directing execution and registration of such a sale deed or deeds by order of the Court and for permanent injunction restraining the defendant, her heirs, successors-in-interest, agents and men from dispossessing the plaintiff from the plaint schedule land or in any way interfering with the plaintiff’s lawful possession and enjoyment over the suit schedule property. 6. It is the contention of the plaintiff-society that there was an agreement, dated 15.12.1974, marked as Ex.A-7, with certain terms and conditions. One of the terms and conditions appears to be that necessary permission under the Urban Land Ceiling Act, 1976 (for short ‘the Act’) should be obtained within one year from the date of execution of the agreement. Accordingly, the plaintiff approached the Urban Land Ceiling (for short “ULC”) authorities concerned and eventually, the exemption under Section 19 (7) of the Act was obtained in the year 1990 and therefore, it is entitled to have the agreement of sale executed by the defendant under law. 7. On the other hand, among various other contentions, the defendant stated that she was not a party to the proceedings initiated under the Act nor did she ever enter into any agreement with the plaintiff. It is only her husband who appears to have sold some properties, which belong to him, but any such sale transaction does not bind her. It is her main contention that since the original sale agreement was not part of the record, the same cannot be relied on and that the agreement of sale, under Ex.A-7, cannot be held to be valid, true and binding on her. 8. There are various other aspects that are being referred to, but, the main issues involved in this appeal are:-- 1. Whether the execution of the agreement of sale, under Ex.A-7, dated 15.12.1974, which is the fulcrum of the suit, has been established by the plaintiff successfully or not? and 2. Whether the same is binding on the defendant or not? 9. In this regard, so many aspects have been considered by both the Courts below. 10. As regards the first issue, it is apt to record certain findings of fact recorded by the trial Court, which reads as under: - “Another noteworthy feature of this case is that P.W-1 had no personal knowledge of the parties entering into the alleged agreement as he came on the scene five years after the date of the alleged contract. He could not give the names of the witness if any and the scribe of the documents. He was neither a party nor a witness to the above said alleged agreement of contract. But in the cross- examination, he mentioned that the transaction took place in the house of Sri T.L.N.Prasad, but even that important person was not either cited or examined as witness. Therefore, there is no primary evidence of the suit document i.e., the alleged agreement of sale. No witness has been examined to speak about the transaction. When it was not at all pleaded or stated in that original document was not available with plaintiff, the attempts to summon the Government officers to produce the copies are futile exercise. The another interesting thing is that the plaintiff wanted the court to summon the V.G.T. U.D.A. to produce the papers listed in the petition filed for the purpose. But, strangely, P.W-1 produced papers as true copies from the ULC office which clearly establishes the oft repeated suggestions made by the defendant’s counsel that P.W-1 with his experience in documents is in a position to procure any paper from the ULC office. P.W-1 had agreed the suggestion on 23.01.2006 that it is true that he has filed this writ without any document or agreement of sale or any other documents in original in their possession. He also admitted that he filed this suit basing on some Xerox copies obtained from ULC office from 25 years old records. The copies of the proceedings of more than 25 years marked by him as exhibits. Ex.A-9 and Ex.A-10 are not of any consequence and cannot avail the plaintiff.” 11. From the above observations, recorded by the trial Court, it is obvious that no primary evidence regarding the suit document i.e., the alleged agreement of sale, was made part of the record of the suit nor the same was established by the plaintiff in any manner. However, some attempts appear to have been made to prove the said document. 12. In this regard, it is to be further noticed that the very basis for the suit claim is the agreement of sale. In other words, without there being any agreement of sale and even if there is any agreement of sale, unless the same is established, the suit for specific performance cannot be maintained at all. 13. Therefore, it is for this reason, this Court has to necessarily examine as to whether both the Courts below have gone into this aspect in detail or not? 14. From the above excerpts, it appears that only the true copies of the agreement of sale had been pressed into service as the suit document. This cannot be accepted under any known tenet of law and furthermore, the agreement of sale, which was pressed into service, was admittedly obtained 25 years ago. Therefore, it has been specifically recorded by the trial Court that the copies of the proceedings under the Act and were initiated about 25 years ago, which are marked as Exs.A-9 and A-10, respectively, are of no consequences and cannot be made use of by the plaintiff. 15. The above findings of the trial Court are relevant in the context of the contention of the learned counsel for the plaintiff that as per the terms and conditions of the agreement of sale, under Ex.A-7, and pursuant to the declaration made by the husband of the defendant and also as agreed under Ex.A-7, the plaintiff made necessary application under Section 19 of the Act in order to get exemption. It is only because of the attempts made by the plaintiff, necessary permission under the Act could be obtained, otherwise, the defendant would not have been in possession of the disputed land at all. 16. In this connection, it is to be further noticed that if the defendant really do not get any right over the disputed property for want of her failure in not obtaining necessary permission from the ULC Authorities concerned, the said land would have been taken away by the Government, in which event, the plaintiff-society would not have got information or opportunity or right to make any claim of the present sort with regard to the suit land. Therefore, the contention of the learned counsel for the plaintiff in this regard cannot be accepted. 17. Now, coming back to the main issue, it is to be seen that, as already noticed, the original agreement of sale was not at all made part of the record. It is only the true copies of the agreement of sale that were made part of the record. Furthermore, P.W.1 appears to have stated in his evidence that he had no personal knowledge of the parties entering into the alleged agreement of sale and in the cross-examination he stated that the alleged transaction of entering into the agreement of sale took place in the house of one Sri T.L.N.Prasad, but no such person was either cited or examined as witness. 18. It was further noticed by the trial Court that no witness was examined to speak about the said transaction and mainly, it was not at all pleaded or stated that the original document was not available with the plaintiff and the attempts to summon the Government officers to produce the copies, turned out to be a futile exercise. In other words, no steps have been taken by the plaintiff to obtain the said agreement of sale in original, from the ULC authorities concerned. 19. It is further on record that P.W-1 had admitted in his evidence that on 23.01.2006, without any document or agreement of sale or any other documents in original in their possession, he filed the suit. In other words, perhaps, as on the date of his examination in the year 2006, he was not in possession of any suit document. He also admitted that the said suit was filed basing on the xerox copies obtained from the 25 year old records of Urban Land Ceiling Office. (emphasis supplied) 20. Further, in the proceedings, under Ex.A-9, before the Urban Land Ceiling authorities, the defendant was not a party and not even a single scrap of paper was filed. This admission that defendant was not a party to the ULC proceedings, which is being heavily relied on by the learned counsel for the plaintiff, cuts across the whole case of the plaintiff, for the simple reason that when the defendant was not a party to the proceedings before the ULC authorities, any agreement of sale or any other permission or document is not binding on the defendant. In other words, even if any order is passed by the ULC authorities, it is not binding on the defendant and such proceedings are binding only on the parties to the proceedings before such authority. 21. The lower appellate Court had again reappraised the whole evidence on record and recorded a finding, particularly as regards Ex.A-7, a copy of the agreement of sale, which is the very foundation for instituting the suit, that the same was not established by the plaintiff. It was also rightly held by the lower appellate Court that the crux of the mater is the proof of agreement of sale in respect of the plaint schedule property and that none of the Ex-Executives were summoned to produce the original agreement, which is stated to be in their possession, nor any notice was given to produce the original or copy of the original agreement of sale, dated 15.12.1974. 22. In fact, this question had also been addressed elaborately by the trial Court and that the trial Court had also dealt with the aspect of imperativeness in producing the original or filing secondary evidence as postulated under Section 65 of the Indian Evidence Act. After dealing with the relevant provisions of the Evidence Act and the essentiality of filing the suit document and the failure in this regard on the part of the plaintiff, the issue has to be decided against the plaintiff. 23. The lower appellate Court had further recorded a finding that the burden of proof of agreement of sale is heavily on the plaintiff and the same must be discharged by the plaintiff alone and eventually held that the plaintiff had failed in establishing the agreement of sale. 24. In simple terms, it is to be recorded that the suit was instituted without the suit document, in which event, necessarily the plaintiff has to be non-suited and both the Courts below after considering elaborately all the other aspects had rightly decided against the plaintiff, which is just and proper. 25. It is contended by the learned counsel for the plaintiff that even though the plaintiff failed in establishing the suit claim for specific performance, still in view of the fact that the plaintiff is an educational society and it has long possession over the property in question, the Courts below ought to have considered the aspect of passing an order in favour of the plaintiff by giving the relief of permanent injunction. 26. In this regard, it is to be seen that when the plaintiff failed in establishing its right over the property to have the sale deed executed in a suit for specific performance, its right of continuing in possession of the same, in any other manner, does not, in fact, arise. Such a possession, of course, may be disturbed by following due process of law and consequently, as of now, since the plaintiff is declared to be unsuccessful, to have the main relief in the suit for specific performance, all the consequences regarding the possession would automatically follow. 27. Learned counsel for the plaintiff had fairly submitted that the plaintiff should either succeed or fail in toto. 28. After elaborate discussion as above and considering the judgments of both the Courts below and the supporting reasons, I am of the considered view that there is absolutely no reason to interfere with the judgments passed by both the Courts below. All the questions that were decided by the Courts below are wholly just and based on factual aspects. When the plaintiff has stumbled at the threshold in establishing its case in the suit for the specific performance, the other aspects, in fact, need not be gone into, inasmuch as, such aspects are connected with the outcome of the main issue, which has been discussed hereinabove. 29. The questions of law, even if any, are mere incidental and consequential to the main relief sought for in the suit i.e., the relief of specific performance of the agreement of sale. In fact, no question of law, much less substantial question of law, arises for consideration in this Second Appeal. 30. For the aforementioned reasons, I am of the opinion that the Second Appeal is devoid of any merits and is liable to be dismissed. 31. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs. ______________________ JUSTICE D.S.R.VARMA 01st October September 2010 dr