* THE HON’BLE SRI JUSTICE R.KANTHA RAO + SECOND APPEAL No. 383 of 2004 % 01-03-2011 # N.Posetty .. Appellant VS. $ N. Jagannadham .. Respondent ! Counsel for the Appellant: Mr. Venkataraghu Ramulu ^ Counsel for the Respondent : Mr. M.V. Ramana < Gist : > Head Note : ? CITATIONS : 1. 2010 (8) Supreme – 428 2. (1997) 3 Supreme Court Cases-546 3. AIR 1991 Supreme Court 1233 IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2004 Between: N. Posetty … Appellant-Plaintiff V/s. N. Jagannadham … Respondent-Defendant Counsel for the appellant : Sri Venkataraghu Ramulu Counsel for the respondent : Sri M.V. Ramana The Court made the following judgment : Judgment follows 2nd page THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2004 JUDGMENT : This second appeal is filed against the judgment and decree dated 27-9-2001 passed in AS.No. 353 of 1999 by the learned XII Additional Chief Judge, City Civil Court, Hyderabad, confirming the judgment and decree dated 16-9-1998 passed in OS.No. 5085 of 1994 by the learned X-Junior Civil Judge, City Civil Court, Hyderabad. 2. Heard Sri Venkata Raghu Ramulu, the learned counsel for the appellant and none appeared on behalf of Sri M.V.Ramana, the learned counsel for the respondent. 3. The plaintiff instituted the suit for specific performance of agreement of sale dated 05-09-1980. The agreement of sale entered into between the plaintiff and defendant, who are brothers, is in respect of Flat No.B-12/4-F, situated at Srinagar Colony, Hyderabad. The said flat was allotted to the defendant by the Andhra Pradesh State Housing Board under lease-cum-sale scheme dated 22-01-1970 and the agreement, is marked as Ex.A-1. The plaintiff agreed to purchase the schedule mentioned flat for total consideration of Rs.42,000/-. There is no dispute that an amount of Rs.42,000/- was paid by the plaintiff to the defendant. However, it is a matter of record that though it was stipulated in Ex.A-1 agreement that the defendant has to execute registered sale deed after receiving the balance of sale consideration within three months from the date of agreement, it could not be implemented because the price received for registering the said plot by the A.P. State Housing Board was increased, the defendant had not complied with the requirement and some instalments were due to the A.P. State Housing Board. For the said reasons both the parties have entered into an agreement on 01-10-1982. In the agreement, the defendant endorsed in his own hand writing that he received a sum of Rs.25,000/- and the plaintiff has to pay a sum of Rs.12,000/- to the A.P. State Housing Board, which was due from the defendant. If any amount becomes due in his name for the said flat in addition to Rs.12,000/-, the entire amount has to be paid by the plaintiff only but not by the defendant. The plaintiff was put in possession of the flat in question in the last week of January 1981 and he paid some instalments to the A.P. State Housing Board. 4. According to the defendant, an amount of Rs.37,455/- was to be paid towards instalments, he asked the plaintiff to pay the said amount on his failure the defendant himself paid the said amount and issued a legal notice dated 16-07-1984 stating about the default committed by the plaintiff and the agreement of sale between them stood cancelled. 5. On the other hand, it is the contention of the defendant before the courts below as well as before this Court that the total consideration as per Ex.A-1 agreement is Rs.42,000/- which was admittedly paid by him, and therefore, he is no longer liable to pay any amount towards the sale consideration. However, it has been specifically contended by the defendant that as agreed under the subsequent agreement, the plaintiff is liable to pay the entire dues to the Andhra Pradesh State Housing Board in addition to the amount, which was paid under agreement of sale. The fact remains that the defendant paid Rs.37,445/- after the demand made by the A.P. State Housing Board. The version of the plaintiff is that the letter demanding payment of Rs.37,445/- was addressed to the defendant, the defendant did not disclose the said fact to the plaintiff but he paid the amount of Rs.42,435/-. 6. Both the courts below have recorded concurrent finding to the effect that the plaintiff has not been ready and willing to perform his part of the contract and he refused to pay an amount of Rs.37,455/- to the A.P. State Housing Board, which was due towards instalment in respect of the schedule mentioned flat, which was paid by the defendant, and therefore, the plaintiff is not entitled for specific performance of contract and permanent injunction. 7. In the second appeal, it has been contended by the learned counsel for the plaintiff that both the courts below did not properly appreciate Ex.A1 agreement and the fact that without informing about the demand made by the A.P. State Housing Board for payment of Rs.37,455/- the defendant himself paid the amount and issued legal notice to him stating that the agreement stood cancelled. 8. The learned counsel therefore argued that the plaintiff is entitled for specific performance of agreement and also for permanent injunction by virtue of Section 53-A of Transfer of Property Act and both the courts below ignored the settled legal position and therefore, the decree and judgment passed by the trial court which is confirmed by the first appellate court shall be set aside. 9. Reliance is placed by the learned counsel for the appellant i n VIJAY KUMAR TALWAR V/s. COMMISSIONER OF INCOME TAX, DELHI [1], for the proposition that finding of fact not based on evidence, non-consideration of relevant evidence, consideration of inadmissible evidence, non-application of legal principles in appreciating the evidence or misreading of evidence may give rise to substantial question of law. He also relied on a decision in MAJOR SINGH V/s. RATAN SINGH (DEAD) BY LRs & ORS[2], wherein the Supreme Court justified the interference of the High Court with the concurrent findings recorded by the courts below, as they are contrary to the evidence on record and the principles of law governing the valid execution of will. 10. The factual situation in the cases relied upon by the learned counsel appearing for the plaintiff is altogether different from that of the case on hand. In the instant case, both the courts below recorded a categorical finding that subsequent to Ex.A-1 the parties entered into another agreement, whereunder the plaintiff agreed to pay the entire dues relating to the plaint schedule flat to the A.P. State Housing Board. Both the courts below analysed the evidence of the plaintiff and noticed that the plaintiff, who was examined as PW-1 deposed that after coming to know that the amount mentioned in Ex.B14 was paid by the defendant to the A.P. State Housing Board, he offered to pay the amount to the defendant but the defendant did not receive it. However, sought to explain during the course of cross- examination that he did not pay Rs.37,455/- to the defendant because he lost confidence in the defendant and since he was put to a lot of inconvenience by the defendant. Thus, the courts below noticed about the existence of subsequent agreement and also the inconsistent stand taken by the plaintiff regarding the payment of an amount of Rs.37,455/-, which was due to the A.P. State Housing Board. Both the courts below have rightly held that the plaintiff has never been ready and willing to perform his part of the contract, and therefore, have rightly refused to grant the relief of specific performance to the plaintiff. 11. The learned counsel further contended that since the plaintiff paid the amount under Ex.A-1 agreement, even if it is considered as part of sale consideration for mere non-payment of remaining part of consideration, he cannot be refused the relief of permanent injunction, since he is entitled to protect his possession under section 53-A of Transfer of Property Act. In support of his contention, he relied upon the decision in MAJOR SINGH V/s. RATAN SINGH (DEAD) BY LRs & ORS referred supra-2 and PANKAJ BHARGAVA AND ANR. V/s. MOHINDER NATH AND ANR[3]. 12. In both the decisions, the Supreme Court held that if the plaintiff is in possession of the property under an agreement of sale, which was reduced to writing and if he took possession of the property in part performance of the contract and he is willing to perform his part of contract, his possession can be protected under section 53-A of Transfer of Property Act. 13. The situation in the instant case is entirely different. The crucial aspect which needs consideration is that unless it is found that the plaintiff has always been ready and willing to perform his part of contract, he is no more entitled for protection under section 53-A of Transfer of Property Act, though he was put in possession of the immovable property under the contract of sale. Both the courts below in the instant case have recorded a finding that the plaintiff has not been willing to perform his part of contract, and therefore, he is not entitled for the relief. As per the judgment relied upon by the learned counsel also protection is not available to the plaintiff, who is not willing to perform his part of contract. It is also obvious from the explicit language of section 53-A of Transfer of Property Act. Therefore, both the courts below perfectly justified in refusing the relief of perpetual injunction to the plaintiff. 14. The findings recorded by both the courts below are based on evidence and they cannot be said to be perverse. Absolutely no substantial question of law is involved in this second appeal for consideration. 15. For the foregoing reasons, I see no ground to interfere with the concurrent findings recorded by the courts below and the same is accordingly dismissed. However, there shall be no order as to costs. ________________________ JUSTICE R . KANTHA RAO 01-03-2011 I s L NB : LR copy to be marked. THE HONOURABLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 173 OF 2004 Circulation No. 51 Date:01-03-2011 Court Master : I s L Computer No. 43 [1]) 2010 (8) Supreme - 428 [2]) (1997) 3 SUPREME COURT CASES-546 [3]) AIR 1991 SUPREME COURT-1233