HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY SECOND APPEAL No. 359 OF 2010 Tuesday, the First day of June, Two Thousand and Ten Between Sri Jatangi Mallaiah Appellant AND Sri Anugu Ravinder Reddy Respondent ORAL JUDGMENT: This Second Appeal is directed against the judgment and decree dated 22.12.2009 passed in A.S. No. 16 of 2009 on the file of the Principal District Judge, Nalgonda, whereby and whereunder the learned District Judge has dismissed the appeal filed under Order 41 Rule 1 and Sec. 96 of CPC assailing the judgment and decree passed in OS No. 165 of 2006 dated 19.1.2009 on the file of the Senior Civil Judge, Nalgonda. The respondent herein is the owner of the premises bearing Door No.1-130 which is situated in an extent of 726 Sq. yards at Ramanjapuram village of Shaligowraram Mandal, Nalgonda District (hereafter referred to as the suit house). The appellant herein agreed to purchase the suit house for Rs.1,00,100/- under agreement dated 9.1.2006 and he paid Rs.20,000/- on the date of agreement. As per the terms of agreement, he has to pay Rs.30,000/- on or before 30.1.2006 and the balance of Rs.50,100/- on or before 15.5.2006. He made payment of Rs.30,000/- on 18.1.2006. According to the respondent/ plaintiff, the appellant/defendant instead of paying the balance amount and getting the sale deed registered, entered into the house forcibly on 8.6.2006 without his consent, as such, the respondent/plaintiff got issued legal notice dated 3.6.2006. The appellant/defendant gave reply on 12.6.2006 to the notice issued by the plaintiff expressing his readiness to pay the balance sale consideration. Thereupon, the respondent/plaintiff issued notice dated 7.7.2006 stating that he has repudiated the contract and forfeited the amount already paid. Hence, the respondent/plaintiff filed the suit for declaration of title and recovery of possession of the suit house. The appellant/defendant filed written statement resisting the claim of the plaintiff. It is the plea of the appellant/defendant that the respondent/plaintiff put him in possession of the premises on receipt of Rs.30,000/- on 18.1.2006 and, therefore, his possession is pursuant to the agreement of sale dated 9.1.2006. The trial court framed the following issues: 1. Whether the possession the suit schedule property was delivered by the plaintiff and his possession is not illegal? 2. Whether the plaintiff is entitled for the relief of declaration of title? 3. Whether the plaintiff is entitled for restoration of possession of the suit schedule property as prayed? 4. To what relief? On behalf of the respondent/plaintiff, he got himself examined as PW-1 besides examining two more witnesses namely Yenugu Shekar Reddy and Chilukuri Venkanna as PWs 2 and 3.He marked seven documents as Exs. A-1 to A-7. On behalf of the appellant/ defendant, he got himself examined as DW-1 besides examining two more witnesses namely Samasathi Reddy and Vootkuri Anjaiah as DWs 2 and 3. He marked three documents as Exs. B-1 to B-3. The trial court on appreciation of the evidence placed on record and on considering the submissions made by the learned counsel for the parties, came to the conclusion that the respondent/plaintiff did not deliver the property to the appellant/defendant in pursuance of the agreement of sale on 18.1.2006 and, therefore, the possession of the appellant/defendant over the suit schedule property is that of a trespasser. With the above observation, the trial court proceeded to decree the suit by the judgment dated 19.1.2009. The appellant/defendant assailed the judgment and decree passed in OS No. 165 of 2006 by filing A.S. No. 16 of 2009 before the Principal District Judge, Nalgonda. The learned Principal District Judge, Nalgonda on re- appreciation of evidence brought on record, did not find any valid ground to interfere with the judgment of the trial court and, thereby, proceeded to dismiss the appeal on 22.12.2009. Hence, this second appeal. Heard learned counsel for the appellant and perused the material brought out on record. The learned counsel appearing for the appellant/defendant submits that the trial court as well as the lower appellate court failed to consider the evidence brought on record in right perspective and thereby committed error in recording the finding that the appellant/defendant was not put in possession of the property on 18.1.2006 pursuant to the agreement of sale dated 9.1.2006. A further submission has been made that from the agreement of sale dated 9.1.2006 which has been exhibited as Ex.B-1, it is evident that the defendant is to be put in possession of the property on payment of Rs.30,000/- which the appellant/defendant paid on 18.1.2006. I have gone through the judgment of the trial court as well as the lower appellate court. There is no dispute that the respondent/ plaintiff is owner of the suit house. The appellant/defendant claims that he has been put in possession of the suit schedule property pursuant to the agreement of sale dated 9.1.2006 on payment of Rs.30,000/- on 18.1.2006. I have gone through the endorsement appearing on Ex.B-1. It relates to payment of Rs.30,000/-. The endorsement does not reflect that the plaintiff delivered possession of the property of the suit house to the defendant/appellant. In deed, the trial court has pointed out the pleadings of the appellant/ defendant in the written statement and observed that the defendant has not pleaded in the written statement that he was put in possession of the suit house by the plaintiff on 18.1.2006 after receipt of Rs.30,000/-. For better appraisal, paragraph No. 8 of the impugned judgment is reproduced hereunder, which reads: It may also be stated here that it is nowhere mentioned in the written statement by the defendant that he was put in possession of the suit house by the plaintiff on 18.1.2006 after receipt of Rs.30,000/-. Thus, the defendant failed to prove that he was put in possession of the suit house on 18.1.2006 in pursuance of the agreement of sale dated 9.1.2006. When the agreement does not speak that the defendant was put in possession on 18.1.2006 on receipt of Rs.30,000/-, there being no pleading in the written statement that he was in possession of the suit schedule property on 18.1.2006, it is impermissible for the appellant/ defendant to contend that the trial court as well as the lower appellate court misappreciated the evidence and thereby drawn conclusions in favour of the respondent/plaintiff. There is no substantial question of law involved in the second appeal warranting admission. Accordingly, the second appeal is dismissed at the stage of admission. No order as to costs. ____________________ B.Seshasayana Reddy, J. June 1, 2010 MAS