HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.275 OF 2002 Dated 26-04-2011 Between: Boppana Punyavatama. …Appellant. And: Datla Ramachandra Raju and others. ……Respondents. HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.275 OF 2002 JUDGMENT: The 2nd defendant in O.S.No.86 of 1984 on the file of the Senior Civil Judge, Bhimavaram is the appellant. The suit was one filed for specific performance of contract of sale dated 10.11.1981 by directing the defendants 2 to 8 to execute the sale deed in favour of the plaintiff or in the alternative to pass a decree for a sum of Rs.19,310.40ps with future interest with a charge over the schedule property. 2. The allegation in the plaint goes to show that the 2nd defendant is the wife of the 1st defendant and the defendants 3 to 7 are their sons. An extent of Ac.0.19 cents shown in the schedule is the exclusive properties of the defendants 1 and 2 and they offered to sell the same for a sum of Rs.52,250/- to the plaintiff and on 10.11.1981, a sum of Rs.6,900/- was paid and an agreement of sale was executed and possession was delivered to the plaintiff. The original sale deed dated 6.11.1964 was also given. On the same day, the defendants 1 and 2 sold Ac.0.09 cents to the north of the present plaint schedule property to one Mudundi Soma Raju which was the subject matter of the dispute in O.S.No.83 of 1984. The plaintiff was always ready and willing to pay the balance consideration and perform the contract. On representation of the defendants, the plaintiff agreed to wait till the disposal of some appeals concerning to their debts due by them to Kanumuri Suryanarayana Raju and others. The appeals filed by the defendants were dismissed and the plaintiff asked the defendants to receive the balance of consideration and to discharge the decree debts and execute the sale deed. As the defendants did not discharge the debt, and as there is every possibility of the property sold in auction, the sum of Rs.60,000/- was deposited by the plaintiff towards the balance of sale consideration. 3. The 1st defendant filed a written statement which was adopted by the other defendants and the 1st defendant died during the pendency of the suit. The defendants pleaded that the schedule properties were attached by Kanumuri Suryanarayana Raju and Ramakrishnam Raju and therefore, there could not be a valid agreement and possessory agreement is a rank forgery. The possession claimed by the plaintiff is not proved. The defendants are not liable to discharge the debts for specific performance of the contract of the plaintiff. The plaintiff taking advantage of the innocence of the defendants and the suits pending, obtained the signatures on blank papers and fabricated the document. 4. On the basis of the above pleadings, the following issues were framed for trial. 1. Whether the suit agreement of sale dated 10.11.81 is true? 2. Whether the plaintiff is entitled for relief of specific performance as a primary relief? 3. Whether the plaintiff is entitled for the relief of advance money and damages as an alternative relief? and 4. To what relief? 5. On behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A.1 to A.25 were marked. On behalf of the defendants, D.Ws.1 to 6 were examined and Exs.B.1 to B.14. Ex.C.1 was marked by the Court. 6. This suit and another suit O.s.No.83 of 1984 were tried together and a common judgment was passed by the Senior Civil Judge decreeing both the suits for specific performance. The Court also did not consider granting of alternative relief. Aggrieved by the judgment in O.S.No.83 of 1984, A.S.No.103 of 1994 was fled on the file of the District Judge, West Godavari at Eluru and the findings recorded by the learned Senior Civil Judge were accepted and the appeal was dismissed in A.S.No.103 of 1994 vide judgment dated 6.6.2001. Aggrieved by the judgment in O.S.No.86 of 1984, the present appeal is filed. 7. The point that arises for consideration is: Whether the agreement of sale is proved and decree of specific performance granted by the lower Court is legal and sustainable? 8. POINT: Common evidence was let in in both the suits and in the appeal referred to above, the appreciation of the evidence made by the lower Court was accepted by the appellate Court. In view of the above circumstances, the scope of coming to a different conclusion in appreciation of the evidence by this Court may not arise. The parties having proceeded for a common trial should have asked for disposal of the appeals also jointly. But, however, it was not done. Even otherwise, in order to prove the validity of the agreement under Ex.A.1 which is concerned to the suit, the mediator-P.W.3 who is said to have settled the bargain and also the attestor of the agreement of Ex.A.1 and also was examined as P.Ws.3 and 4 is the scribe and their evidence clearly goes to show that there was a valid transaction between the plaintiff and the defendants and the consideration was paid and sale agreement was executed. Evidently, the custody of the original sale deed dated 6.11.1964 was handed over to the plaintiff. The fact that the defendants are related to the others is not disputed. The defendants’ theory of signing on blank papers taking advantage of the innocence which cannot be accepted in view of the persons associated with the documents and the evidence of P.W.3 who has settled the bargain. Capacity of the plaintiff to purchase the property is also not in dispute and in fact, the balance of sale consideration was disputed in the Court. Merely because, the property was under attachment, even if it is true, the agreement cannot be defeated and the sale can only be subject to the result of the attachment. Further more, even as per the agreement, balance of sale consideration, the debts are to be discharged. Therefore, for the above reasons, I have no hesitation in holding that the lower Court came to a right conclusion that the agreement Ex.A.1 is true and binding. 9. However, the learned counsel for the appellant pleads that there is no other property for the appellant and already part of the property which is the subject matter of O.S.No.83 of 1994 was lost and a decree of specific performance will cause hardship and instead a sympathetic view may be taken and a decree for refund of the consideration may be passed. It is to be noted that the relief of specific performance is a discretionary relief. In this case evidently, the plaintiff has deposited the balance of consideration at the time of filing of the suit which was in the year 1984. The plaintiff was already ready and willing to perform the contract. Possession of the property is also said to have been delivered to the purchaser. Therefore, in view of the above circumstances, any substitution of the discretion by this Court is not warranted and not necessary. Therefore, the decree of specific performance granted by the lower Court is to be confirmed. 10. Accordingly, the point is answered. 11. In the result, the appeal is dismissed. Each party do bear their own costs. _________________________________ Justice N.R.L.NAGESWARA RAO Dated 26-04-2011. Dvs HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No.275 OF 2002 Dated 26-04-2011