HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1477 OF 2010 Dated 2-2-2011 Between: Siriki Simhachalam and another. …Appellants. And: Lokavarapu Appa Rao. …Respondent. HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1477 OF 2010 JUDGMENT: This Second Appeal is filed against the judgment and decree passed by the Additional District Judge, Vizianagaram in A.S.No.28 of 2002 confirming the decree and judgment passed by the Principal Junior Civil Judge, Vizianagaram in O.S.No.135 of 1996. Appellants herein are the defendants and respondent herein is the plaintiff. The parties will hereinafter be referred to as arrayed before the trial court for the sake of convenience. I have heard the learned counsel appearing for the appellants/defendants. The plaintiff instituted the suit seeking the relief of specific performance of agreement of sale dated 25-12-1994 and permanent injunction against the defendants. According to the plaintiff, the subject matter of the suit is of an extent of Ac.0-36 cents of land belonging to the first defendant who is the father of the second defendant. Both of them executed an agreement of sale dated 25-12-1994 agreeing to sell the land of an extent of Ac.0.32 cents at the rate of Rs.1,000/- per cent. The defendant received Rs.7100/- as advance of sale consideration which was in fact set off towards the debt due to the plaintiff under an earlier mortgage. It was agreed that after measuring the land and receiving the balance of sale price, the defendants have to execute a registered sale deed in favour of the plaintiff. On failure by the defendants to execute a registered sale deed, the plaintiff issued a notice on 19-5-1995 demanding the defendants to perform their part of contract. Defendants did not respond and ultimately, the plaintiff filed the suit. In support of his claim, the plaintiff examined himself as P.W.1 and examined the attestors of Ex.A.1 agreement to sell as P.Ws.2 and 3 who have categorically stated about the execution of Ex.A.1 by the defendants 1 and 2 and payment of advance which was set off towards the earlier mortgage debt. Ex.A.1 agreement is in the hand writing of the first defendant. He has set up the plea that there is another son of the defendant No.1, the property is not partitioned between the co-sharers and the plaintiff is not entitled for a decree for specific performance of agreement to sell. They also disputed the genuineness of Ex.A.1 agreement. Learned trial Court as well as the 1st appellate Court considering the entire evidence on record, took notice of the fact that the 1st defendant has another son and the defendants 1 and 2 have only 2/3rd share in the schedule mentioned property and plaintiff proved Ex.A.1 agreement to sell by examining himself as P.W.1 and attestors as P.Ws.2 and 3 producing the said document. Both the Courts below also rightly repelled the contentions of the defendants that the entire case of the plaintiff has to be disbelieved for non-production of the mortgage deed, on the ground that the question of production of mortgage deed is only ancillary and when the agreement is proved as required under law, the relief shall not be rejected for mere non- production of the mortgage deed. The courts below basing on evidence forthcoming in the present case, recorded concurrent findings that the plaintiffs are not able to prove that the possession was delivered to them under Ex.A.1 agreement to sell and that the defendants in fact are in possession of the schedule mentioned land. Ultimately, the decree and judgment passed by the trial Court granting relief of specific performance and rejecting the relief of permanent injunction was confirmed by the first appellate Court. Both the Courts below have recorded the findings in respect of the execution of Ex.A.1 agreement to sell by the defendants 1 and 2 and passing of consideration in the form of setting off the earlier mortgage debt due from the defendant. The decree was also passed only in respect of the 2/3rd share of the defendants 1 and 2 setting apart the 1/3rd share of another son Narayanarao. Concurrent findings of the fact recorded by both the courts below are based on evidence and reasoning, they cannot be said to be either perverse or not based on evidence on record. There is no substantial question of law arises for consideration in this second appeal. This Court therefore will not interfere with the concurrent findings of fact recorded by the Courts below. The Second Appeal therefore fails and is hereby dismissed at the stage of admission. No costs. __________________________ Justice R.KANTHA RAO Dated 2-2-2011. Dvs HONOURABLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.1477 OF 2010 Dated 2-2-2011