IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SECOND (22ND) DAY OF JANUARY, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CCCA No.116 of 2000 Between: A. Yellappa Sastri … Appellant And: Gunda Shankara Lingam (died) & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CCCA No.116 of 2000 JUDGMENT: This appeal is directed against the judgment and decree dated 14.02.2000 in OS No.1710 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad, wherein, the said suit filed by the appellant herein for specific performance of contract of sale dated 25.11.1986, was dismissed. 2. Arguments of the learned counsel for the appellant and the learned counsel for the respondent are heard. Perused the record. 3. The appellant herein filed suit for specific performance with the averments, which in brief are as follows: The plaint schedule house property bearing D.No.8-3-988/28, Srinagar Colony, Hyderabad, belonged to the first respondent. He offered to sell and the plaintiff agreed to purchase the same. The sale consideration was fixed at Rs.3,85,000/-. As per the terms agreed upon, the plaintiff had to pay Rs.1,00,000/- as advance and he has to pay further sum of Rs.1,00,000/- where upon possession be delivered and the balance sale consideration has to be paid at the time of execution of registration of the sale deed. The first defendant passed a receipt to that effect on 25.11.1986 having received Rs.1,00,000/-. The first defendant promised to get the property released from mortgage in favour of 3rd defendant. In the second week of December 1986 the first defendant sought further time on the ground the tenant did not vacate. The first defendant collected Rs.97,000/- from the plaintiff on 10.12.1986 by way of endorsement on the reverse of the receipt dated 25.11.1986. Having received more than half of the sale price by 10.12.1986, first defendant delivered symbolic possession to the plaintiff. The ground floor was in possession of M/s Tresa German, tenant of first defendant. The tenant vacated the ground floor and the plaintiff took possession of the same in July 1987. The plaintiff permitted the first defendant’s son to live in the upstairs portion till he secures a suitable accommodation. In spite of several demands, the first defendant did not respond and did not obtain income tax clearance certificate and failed to discharge mortgage debt, but in stead, made attempts to sell the suit property to others. Hence, the plaintiff is constrained to file suit for specific performance. 4. The first defendant filed written statement contending in brief as follows: The first defendant never entered into an agreement of sale with the plaintiff in respect of the suit property. The amount of Rs.1,97,000/- was paid by plaintiff to first defendant by way of loan but not towards sale consideration. The first defendant is an employee of 2nd defendant’s bank and as such is a member of 3rd defendant-society. In the year 1966, 3rd defendant after obtaining loan from 2nd defendant, purchased 2700 square yards of land in Ward No.8 of Yellareddiguda under seven registered sale deeds for providing house sites to its members. The first defendant was allotted Plot No.28 in the said land. The 3rd defendant constructed a house in 1973 with the financial help of 2nd defendant under housing loan scheme. As per the covenants in the agreement executed by 3rd defendant-society, the property allotted shall not be sold without prior permission of defendants 2 and 3. Due to financial crisis, the first defendant approached the plaintiff for hand loan of Rs.2,50,000/-. When the plaintiff asked the first defendant to execute registered agreement of sale or mortgage in respect of suit building by way of security, first defendant expressed his inability, since he has no title over the property. The plaintiff obtained signed blank papers from first defendant with an understanding that they would be returned on repayment of loan. The plaintiff paid Rs.1,00,000/- and another sum of Rs.97,000/- through demand draft and account payee cheque under endorsements dated 25.11.1986 and 10.12.1986. The plaintiff used blank signed papers to fabricate receipts dated 25.11.1986 and 10.12.1986. The receipts were brought into existence by playing fraud and they are inadmissible in evidence for want of proper stamp duty. In August 1987 the plaintiff made attempts to take possession of the building forcibly. So first defendant filed suit OS No.4193 of 1987 on the file of the 7th Assistant Judge, City Civil Court, Hyderabad and obtained interim injunction. In spite of it, the plaintiff forcibly occupied the suit building in September 1987. The 7th Assistant Judge, Hyderabad ordered for restoration of the possession of the ground floor and also provided police aid. The alleged delivery of possession of ground floor in favour of the plaintiff is false. During the pendency of the suit, the plaintiff forcibly occupied the entire suit schedule property and is running a Convent School on commercial lines. The first defendant is entitled for rent of Rs.6,000/- per month for the illegal occupation by plaintiff. The plaintiff is guilty of tampering the alleged receipt by way of interpolation and making material alteration, besides fabricating the said document. 5. The 2nd defendant mortgagee filed written statement contending in brief as follows: The 3rd defendant-society created mortgage over the suit property by deposit of title deeds. The 3rd defendant utilized the loan advanced by 2nd defendant for construction of the house for its members on mortgaged land, including the house of first defendant. Till the entire loan is discharged, suit property cannot be released from the mortgage. The first defendant has no right to sell the property, which is subject matter of the mortgage. Considerable amounts were outstanding in the loan account of 3rd defendant-society under the mortgage. As per the terms of the agreement executed by first defendant, he shall not part with property without prior permission. The first defendant has no title to the suit schedule property. 6. The 3rd defendant-society filed written statement contending that in the year 1966, 3rd defendant purchased 2700 square yards of land and availed loan of Rs.8,05,000/- from 2nd defendant for purchase of the land and for construction of the house and created a mortgage by depositing the title deeds. The first defendant was allotted Plot No.28 on his executing agreement dated 24.10.1973. The loan was repayable in monthly installments commencing from January 1976. The first defendant stopped remitting installments from October 1980 and an amount of Rs.27,478.92 is outstanding. The entire property is under mortgage and the suit property cannot be released from the mortgage till entire loan is discharged. The suit property is not yet conveyed in favour of first defendant by the society and the society is the owner thereof. Hence, the first defendant has no right to sell the property and any agreement of sale in favour of the plaintiff is not valid. 7. On the strength of the above pleadings, the following issues were settled for trial. 1. Whether the plaintiff is entitled for specific performance of the suit contract as prayed for? 2. Whether the payment of Rs.1,97,000/- made by the plaintiff to first defendant is not towards part of the sale consideration but as hand loan as alleged? 3. Whether the alleged receipt with endorsement dated 25.11.1986 and 10.12.1986 is fabricated as alleged? 4. To what relief? 8. During the trial, the plaintiff was examined as PW.1 and Exs.A.1 to A.61 were marked on his side. DWs.1 to 4 were examined and Exs.B.1 to B.12 were marked on behalf of the defendants. 9. On a consideration of the evidence available on record, the trial Court held that the truth and genuineness of receipt Ex.A.1 and the endorsement Ex.A.6 on the reverse of Ex.A.1 are not established and the said document cannot be treated as an agreement of sale and they are invalid and unenforceable and the payment of Rs.1,97,000/- by plaintiff to first defendant is only by way of hand loan and not towards part of sale consideration and the plaintiff is not entitled for the equitable relief of specific performance. Consequently, the suit was dismissed with costs. Aggrieved by the same, the plaintiff preferred the present appeal. 10. The plaintiff seeks specific performance of an agreement of sale in respect of plaint schedule house property based on Ex.A.1, which according to him is an agreement of sale executed by first defendant. The plaintiff contends that the first defendant offered to sell the suit property for a sale consideration of Rs.3,85,000/- and paid Rs.1,00,000/- as advance and executed Ex.A.1 in respect of the said transaction and balance sale price of Rs.1,00,000/- was to be paid subsequently and the remaining amount was payable at the time of execution of the registered sale deed. He would further contend that on 10.12.1986, the first defendant paid a further sum of Rs.97,000/- as agreed upon and made an endorsement Ex.A.6 on the back of Ex.A.1. In the plaint, the plaintiff has prayed for the relief of specific performance of contract of sale dated 25.11.1986. It is also averred that the cause of action for the suit arose on 25.11.1986, the date on which agreement of sale was executed, and the part of sale consideration was paid. Thus, according to the plaintiff, Ex.A.1 dated 25.11.1986 is the agreement of sale based on which suit is filed. In the body of the plaint, it is, however, pleaded that the document dated 25.11.1986 is only a receipt. The first defendant categorically denies that he executed any agreement of sale under Ex.A.1 or passed any receipt. He also denies to have offered to sell the suit house for a consideration of Rs.3,85,000/- or that he made any part payment by way of advance of Rs.1,00,000/- on 25.11.1986 under Ex.A.1 and Rs.97,000/- on 10.12.1986 under Ex.A.6. According to him, first defendant was in need of money in connection with the marriage and therefore, he approached the plaintiff for hand loan of Rs.2,50,000/- and first defendant lent Rs.1,00,000/- on one occasion, Rs.97,000/- on another occasion through demand draft and account payee cheque and the plaintiff taking advantage of the signed blank papers, which were taken by way of security, fabricated receipts under Exs.A.1 and A.6 and further manipulated the same by converting them into an agreement of sale by way of interpolation and material alteration. In view of the categorical denial of the transaction of sale and entering into any agreement of sale with the plaintiff and execution of any such document under Exs.A.1 and A.6 by defendant, the burden squarely lies on the plaintiff to establish the truth and validity of the transaction contained under Exs.A.1 and A.6. 11. The factum of receipt of Rs.1,97,000/- by first defendant from plaintiff is not disputed. But according to first defendant, it was received only by way of hand loan, whereas, the plaintiff contends that it was paid towards part of sale consideration. A perusal of Ex.A.1 shows that it is styled as a receipt. The contents of Ex.A.1 has originally reflected that it was only a receipt acknowledging the receipt of Rs.1,00,000/- by way of demand draft from the plaintiff. It is, however, stated in Ex.A.1 that the said amount was received towards initial advance as against actual price of Rs.3,85,000/- towards sale of the suit house. However, it is further stated in Ex.A.1 that actual sale agreement is to be executed in due course detailing terms and conditions after receiving further advance of Rs.1,00,000/-. Ex.A.1 would, however, shows that certain words and sentences were added in different ink by way of interpolation under the caption ‘receipt’, it was added ‘terms of sale – vacant possession after receipt of 50% of sale price’. In the fourth line from the bottom, the word ‘above’ is noted as pre-fixed to the words ‘terms and conditions’. Towards end of the document, the words ‘actual possession to be given as agreed to’ are added. All the above additions are made in different ink. In the cross-examination, PW.1 went to the extent of denying even the fact that they are in different ink, though, it is clear and apparent even to the naked eye that the above words and sentences are added in different ink. Even according to PW.1 he himself wrote the contents of Exs.A.1 and A.6 and none was present to witness the transaction on those occasions. The plaint is silent as to when those additions were made and under what circumstances. A close scrutiny of the contents of Ex.A.1 would disclose that there was an attempt on the part of the plaintiff to convert the document, which was originally written as a receipt in to the same sort of an agreement. No doubt, Ex.A.1 makes reference to payment of initial advance towards sale price, but it also stipulates that actual sale agreement is to be executed in due course detailing the terms and conditions after receiving further advance of Rs.1,00,000/-. Thus, even going by the contents of Ex.A.1 as originally written, the said document was only a receipt for the amount of Rs.1,00,000/- paid towards advance with a stipulation that further advance of Rs.1,00,000/- is to be paid on a future date in due course, where upon, the actual sale agreement is to be executed detailing the terms and conditions. Subsequently, as rightly held by the trial Court, the document was tampered with and some terms are sought to be introduced by adding words ‘terms of sale – vacant possession after receipt of 50% sale price and that actual possession is to be given as agreed to’. The document was made to appear that with the above terms and conditions actual sale agreement is to be executed. It is, therefore, clear from the document Ex.A.1 itself that a regular agreement of sale was proposed to be executed on a later date detailing the terms and conditions and after receiving further advance of Rs.1,00,000/-, in which event Ex.A.1 cannot be termed as an agreement of sale. The terms of sale, which are referred to in Ex.A.1 are vague and uncertain and do not in any way reflect meeting of minds of both parties in respect thereof. The fact that the additions were made subsequently can be discerned from the circumstance that the size of the letters in the last sentences got progressively reduced so as to squeeze them in the limited space available above and adjacent to the revenue stamps affixed. Similarly, in Ex.A.6 also it was originally drafted as a receipt for the payment of further advance of Rs.97,000/- and it was reiterated that the agreement of sale would be executed in due course in consultation with the Advocate. The words ‘owing to some tenant problem, the actual possession of the building could not be delivered, I have agreed to pay interest at 36% per annum till possession’ appearing at the top of Ex.A.6 and the words ‘possession being arranged’ appearing at the end of Ex.A.6 are clearly additions made in different ink. The contents of those additions and the way they are written in an abridged manner would indicate that they were not contemporaneous with the original contents, but were interpolated subsequently and squeezed in the limited available space. Thought the first defendant has specifically pleaded in his written statement that Exs.A.1 and A.6 are fabricated documents and they are also materially altered so as to convert the receipt into an agreement, the plaintiff has not chosen to file any rejoinder. It is not a case where an agreement of sale was admittedly executed and the defendant questioned its validity on the ground of material alteration. The present one is a case where the first defendant totally denied the execution of any receipt or agreement and contends that the plaintiff originally fabricated the receipt on the signed blank papers and subsequently manipulated and sought to convert the same into an agreement of sale. Simply because, the first defendant has admitted receipt of Rs.1,97,000/- which according to him, is towards hand loan and does not dispute the signatures on Exs.A.1 and A.6, the burden does not shift on to the first defendant. The burden of proof still lies heavily on the plaintiff to establish the alleged transaction of sale and that the first defendant did in fact executed an agreement of sale in his favour and paid the amount of Rs.1,00,000/- and Rs.97,000/- towards sale consideration only. Except the ipsi dixit of PW.1, there is absolutely no other evidence in support of his claim. In view of the suspicious circumstances surrounding to Exs.A.1 and A.6, which are apparent from the documents themselves and the material alterations, the version of PW.1 is wholly suspect. Even otherwise, Ex.A.1 is not an agreement of sale that was entered into but was only a receipt as per the pleading in the plaint and the document contemplates only sale agreement to be executed in due course. Based on such document as Ex.A.1, which is imperfect, incomplete, vague and uncertain no concluded contract that can be enforced by way of specific performance can be inferred. The plaintiff, has, therefore, failed to establish that there was any concluded contract of agreement of sale executed by first defendant in his favour, which can be specifically enforced. The finding of the trial Court that the plaintiff failed to establish the truth and genuineness of Exs.A.1 and A.6 does not, therefore, call for any interference. 12. In fact, first defendant has no title over the suit property to convey the same in favour of the plaintiff. Admittedly, the suit property forms part of larger extent of land, which was purchased by 3rd defendant-society by taking loan from the 2nd defendant bank for the purpose of construction of houses for its members and one such house i.e., suit property bearing Plot No.28 was allotted to first defendant. It is also not disputed that entire property, including the suit property, was mortgaged by 3rd defendant in favour of 2nd defendant and the said loan is still outstanding. According to the 2nd defendant, first defendant committed default in payment of monthly instalments from October 1980 and the part of loan is still outstanding. DW.4-Secretary of the 3rd defendant society testified that the plot is standing in the name of 3rd defendant-society and the title is not conveyed in favour of first defendant. In fact PW.1 himself admitted in the cross-examination that still 3rd defendant is the owner of the property and first defendant has no right to convey. Though the defendants 2 and 3 are added as parties, no specific relief is claimed against them and plaint does not disclose as to why they are impleaded. PW.1 admitted in the cross- examination that he was personally aware of the mortgage of the suit property in favour of 2nd defendant and that it was 3rd defendant society, who purchased the entire land including the suit site and created a mortgage over the same in favour of 2nd defendant. He further admitted that the suit property is not registered in the name of first defendant by 3rd defendant and he did not make any application before 2nd defendant or 3rd defendant, seeking no objection certificate. and still huge amount is due by first defendant to 2nd defendant. From his own admissions in evidence, it is clear that the plaintiff is aware of the fact that the 3rd defendant continued to be the owner of the property including the suit property and the same is granted in favour of 2nd defendant and the loan due by first defendant in favour of 2nd defendant is still outstanding and therefore, title was not conveyed in favour of first defendant. Admittedly, the plaintiff has not chosen to clear the outstanding loan due by first defendant to 2nd defendant and got the property realized from mortgage before filing of the suit. He has never made any such effort before filing the suit and he has not averred in the plaint that he was ready and willing to perform his part of the contract. Admittedly, he has not issued any notice also to the first defendant or other defendants before filing of the suit, expressing his willingness to clear the loan on behalf of the first defendant. Thus, by the date of the alleged agreement of sale Ex.A.1, and even by the date of filing of the suit, and subsequently also, first defendant had no title over the suit property and 3rd defendant continued to be the true owner thereof subject to the mortgage in favour of 2nd defendant. Thus, when the first defendant himself had no title, the question of conveying any valid title to the plaintiff in respect of the suit property under Ex.A.1, even if, it is true, does not simply arise. 13. Regarding possession, Ex.A.1 as originally written, is silent as to when possession is to be delivered. Subsequent additions made in Ex.A.1 in different ink are to the effect that the vacant possession is to be given after receipt of 50% of the sale price and that actual possession is to be given as agreed to. The above terms, which are subsequently interpolated and thereby amounting to material alterations have vitiated the document itself, apart from the fact that they are vague and uncertain and they do not disclose as to when and before what date 50% of sale price is to be paid. In Ex.A.6 it is made to appear that owing to some tenant problem, the actual possession could not be delivered and possession was being arranged. Thus, as per Ex.A.6 by 10.12.1986 possession was not delivered. But the plaintiff claims that symbolic possession was delivered on 10.12.1986, for which there is no evidence. According to PW.1 tenant-DW.3 delivered possession of ground floor in July 1987 and he permitted first defendant’s son to remain in the first floor and he delivered possession of the first floor in September 1987. 14. It is not disputed that first defendant filed OS No.4193 of 1987 against the plaintiff for injunction alleging that the plaintiff was trying to take forcible possession. The said suit was filed on 09.09.1987 and the temporary injunction was also granted in favour of first defendant in that suit. The first defendant alleges that in spite of temporary injunction, plaintiff has taken forcible possession. It is not disputed that the first defendant filed IA No.917 of 1987 for restoration of possession and the same was allowed and warrant of delivery was also issued. Subsequently, the said suit was dismissed for default is a different matter. It is significant to note that the plaintiff has prayed not only for specific performance but also for recovery of possession. If really, the plaintiff has taken possession in July 1987 after the tenant vacated and locked the premises, question of praying for recovery of possession does not arise at all. The evidence of DW.3 who was a tenant of the ground floor would support the case of first defendant that the plaintiff forcibly occupied the suit property after institution of suit OS No.4193 of 1987. Exs.B.3 and B.4 Commissioner’s report and proceedings, also support the case of first defendant that he was in possession of suit house as on the date of the suit OS No.4193 of 1987. On being satisfied with first defendant’s possession over the suit property, temporary injunction was granted by the Court in his favour in OS No.4193 of 1987 and subsequently when the plaintiff has taken forcible possession, warrant for restoration of possession was also ordered to be issued. It is significant to note that the date on which the plaintiff obtained possession is nowhere mentioned in the plaint. The plaintiff seeks to rely on Exs.A.1 to A.5 and A.59 to A.61 property tax receipts in support of his claim of possession. According to first defendant, the plaintiff has taken away the said document after he forcibly occupied the suit house and by breaking open almirahs. Curiously, PW.1 in the cross-examination stated that he came into custody of those documents through the counsel for