Dismissal of injunction suit is not bar for filing specific performance suit The dismissal of O.S.No.901 of 1995 will not have any adverse impact on O.S.No.630 of 1988 because the former suit was dismissed on the technical ground that an agreement to sell can only be used as a protective shield but not as a sword to file injunction suit and the plaintiff has to seek alternative and efficacious relief of specific performance. The plaintiffs have, in fact, filed the specific performance suit and therefore, the dismissal of O.S.No.901 of 1995 is not a consequence.
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A. No.57 of 1999
28-02-2017
Seelam Mallaiah (died) per LRs.and others. ... Appellants
P.Narasinga Rao (died) per LRs.and others. . Respondents
Counsel for Appellants: Sri T.Viswanadha Sastry
Counsel for Respondents: Sri Meherchand Nori
<Gist:
>Head Note:
? Cases referred:
1) AIR 2015 (NOC) 202 (Bom.)
2) 1996 (3) ALD 919
3) AIR 2015 Rajasthan 24
4) (1977) 4 Supreme Court Cases 402
5) 1995 (1) ALT 511
6) 1993 Supp (3) Supreme Court Cases 549
7) 2003 (2) ALD 640
8) 1999 (6) ALD 160
9) AIR 2003 SC 4548
10) MANU/AP/0041/2016
11) (2006) 11 SCC 331
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A.No.57 of 1999
JUDGMENT:
The unsuccessful defendant in the Court below preferred the
instant appeal aggrieved by the common judgment dated 16.12.1998 in
O.S.No.630 of 1988 passed by V Senior Civil Judge, City Civil Court,
Hyderabad, whereby and whereunder the learned Judge decreed the
plaintiffs suit filed for specific performance of agreement of sale dated
19.12.1986.
2) The parties in this appeal are referred as they stood before the trial
Court in O.S.No.630 of 1988 and defendants 2 and 3 in O.S.No.901 of
1995 are referred as third parties.
3) The factual matrix of the case is thus:
a) The case of the plaintiffs is that defendant is the absolute owner of
suit schedule property bearing House No.4-7-412 to 415 admeasuring
110 sq. yards situated at Esamiah Bazar, Hyderabad which was
purchased by him through registered sale deed dated 22.12.1962 and
ever since he had been in possession and enjoyment of the same. While
so, the defendant entered into an agreement of sale dated 19.12.1986
(Ex.A1) with the plaintiffs in respect of suit schedule property for total
consideration of Rs.1,80,000/- and received Rs.1,40,000/- towards
advance, agreeing to receive balance amount of Rs.40,000/- at the time
of registration. After entering the agreement the defendant evicted the
tenants and delivered physical possession of the suit schedule property
to the plaintiffs on 05.03.1988 and since then the plaintiffs are in
possession and enjoyment of the same.
b) The further case of the plaintiffs is that while the matter stood
thus, the defendant tried to alienate the suit schedule property to third
parties hence, they lodged a criminal complaint on 05.04.1988 before
the SHO, Sultan Bazar and they also issued a notice to the defendant
asking him to execute registered sale deed stating that they were ready
and willing to pay the balance sale consideration at the time of
registration, but there was no response from the defendant side.
c) The further case of the plaintiffs is that when the defendant tried
to dispossess them from the suit premises on 02.04.1988 and
05.04.1988, they filed suitO.S.No.1365 of 1988 (renumbered as
O.S.No.901 of 1995) on the file of VI Assistant Judge, City Civil Court,
Hyderabad for perpetual injunction and they also filed I.A.No.275 of
1988 for interim injunction which was granted. Despite the injunction
order the defendant tried to alienate the suit property to third parties.
Hence the suit.
d) The defendant filed written statement denying execution of
Ex.A1agreement; receipt of advance amount of Rs.1,40,000/- and
delivery of physical possession. His case was that he never intended to
sell the suit schedule property to the plaintiffs, but they by force,
compulsion and playing fraud obtained his signatures on blank papers.
The plaintiffs paid Rs.90,000/- on different dates and got released the
documents. He also contended that Ex.A1suit agreement is vexatious.
He never delivered possession of the suit property to the plaintiffs, but
they filed police complaint and forcibly thrown him out from the suit
schedule property. The suit agreement which was obtained on blank
papers, was bad and unenforceable. He also contended that suit was bad
for non-joinder of parties such as D.Balaiah and others who are parties
to the suitO.S.No.1365 of 1988 (renumbered as O.S.No.901 of 1995).
e) Basing on the above pleadings, the trial Court framed the
following issues:
1) Whether the plaintiffs were always ready and willing to
perform their part of the contract?
2) Whether the plaintiffs are entitled for specific performance of
agreement of sale dt.19.12.1986?
3) Whether the suit is bad for non-joinder of necessary parties?
4) To what relief?
f) During trial PW.1 was examined and Exs.A1 to A13 were marked
on behalf of plaintiffs. DWs.1 to 3 were examined on behalf of
defendant but no documents were marked.
g) The trial Court after hearing both sides and on considering the
oral and documentary evidence, on issue No.3 observed that D.Balaiah
and his sons were neither necessary nor proper parties to the suit; on
issue Nos.1 and 2 the trial Court observed that Ex.A1agreement of
sale was true, valid and enforceable and plaintiffs were always ready
and willing to perform their part of contract and they are entitled for
specific performance and accordingly decreed the suit.
Hence, the appeal.
4 a) During the pendency of appeal, sole appellant died and his LRs.
were brought on record as appellants 2 to 6 in CMP No.7796 of 2000
dated 16.06.2000. Pending appeal, appellant No.4 died and his L.Rs.
were brought on record as appellants 7 to 11 in CCCA MP No.589 of
2015 dated 15.06.2016.
b) R1 died and his LRs. were brought on record as respondents 5 to
10 in CCCA MP No.383 of 2006 dated 03.07.2006.
5) Heard arguments of Sri T.Viswanadha Sastry, learned counsel for
appellants and Sri Meherchand Nori, learned counsel for respondents.
6 a) Deprecating the judgment, learned counsel for appellants firstly
argued that the defendant never executed Ex.A.1agreement and
delivered possession thereafter and the plaintiffs taking advantage of his
illiteracy, fabricated Exs.A.1 to A.3 obtaining his signatures on blank
papers by playing fraud on him. This fact was amply established through
the evidence of DWs.1 and 2 but the trial Court miserably failed to
consider their evidence in proper manner and erroneously decreed the
suit.
b) Secondly, he would argue that the defendant never delivered the
link documents connecting to Ex.A.1 as alleged by the plaintiffs and on
the other hand, sometime prior to the alleged agreement, the defendant
mortgaged suit property to the plaintiffs and in that connection he
delivered his documents and keeping those documents with them, the
plaintiffs fabricated Ex.A.1 and falsely claimed as if the link documents
were delivered to them.
c) Thirdly and alternatively he would argue, even assuming the
defendant executed Ex.A.1, the same is not valid because the suit
property is an ancestral property wherein the defendant and his five sons
have equal share, in which event, the suit for specific performance
without impleading them is bad for non-joinder of necessary parties. He
vehemently argued that though issue No.3 was framed to that effect, the
trial Court failed to answer the same. Regarding the legal effect of non-
joinder of other coparceners, he placed reliance on the decision reported
in Shri Kashinath Rajaram Kasabe and others vs. Shri Ramchandra
Tukaram Kasabe and others .
d) Fourthly, he contended that Exs.A.1 and A.3 are compulsorily
registrable and exigible to stamp duty penalty without meeting which
requirements, they are inadmissible in evidence and therefore, they are
liable to be rejected. He would further argue that though delivery of
possession was not effected through Ex.A.1 and allegedly effected
through another document i.e, Ex.A.3, still they require registration and
stamp duty. He cited the decision in Dauluru Ramachandra Rao vs.
Bhogi Venkata Ramana .
e) Fifthly, learned counsel would argue that Ex.A.11GPA
executed by defendant in favour of Ramagiri Venkata Ramanaiah is
compulsorily registrable and amenable to stamp duty penalty and since
such requirements were not met, the same is liable to be rejected. He
relied upon the decision in Jai Kumar vs. Hanuman and others .
f) Sixthly, he argued that even assuming that Ex.A.1 is genuine, still
plaintiffs are not entitled to specific performance as they failed to
perform their part of contract scrupulously.
g) Finally, he argued that the suitO.S.No.901 of 1995 filed by the
plaintiff for perpetual injunction in respect of the suit property was
dismissed and since no appeal is filed against the said judgment, the
plaintiff cannot maintain the suit for specific performance as he is not
entitled to possession. He thus prayed to allow the appeal.
7 a) Per contra, while supporting the judgment learned counsel for
respondents in reply to arguments 1 to 3 of the appellants, submitted that
in the suit the sheet anchor of the defence was that the defendant never
executed agreement to sell and it was fabricated and that he never
delivered the link documents to the plaintiffs. Except that there was no
pleading that the suit property was his ancestral property and therefore,
he had no right to execute agreement to sell. In fact, in Ex.A.1 he
claimed suit property as self-acquired property. His two sons who acted
as attestors did not dispute this fact. Therefore, the defence argument in
the suit that the suit property was an ancestral property and defendant
had no right to execute agreement to sell and that the suit was bad for
non-joinder of necessary parties was rightly rejected by the trial Court.
Learned counsel vehemently argued that a party cannot for the first time
raise a plea during trial or arguments without taking such plea in his
pleadings. Such a plea taken at a later stage will not be accepted by the
Court. On this aspect he relied upon on the following decisions:
(i) Smt. Chander Kali Bai and others vs. Shri Jagdish Singh
Thankur and another
(ii) K.Venkateswarlu vs. Nagarjuna Grameena bank rep. by its
Chairman, Khammam and another
(iii) Ramchandra Kulkarni (dead) by LRs. vs. Dinkar
He thus argued that the said argument cannot be raised by the
appellants again in this appeal. Regarding the argument that Ex.A.1 was
fabricated by obtaining the signatures of the defendant on blank papers,
learned counsel argued that the plaintiffs established the genuinity of
Ex.A.1 through voluminous documentary and oral evidence and further,
in the cross-examination of PW.1 the defendant suggested as if he
executed another agreement to sell in favour of D. Balaiah and others
since the plaintiffs failed to pay the balance sale consideration under
Ex.A.1, which implies the defendant admits the execution of Ex.A.1.
Then delivery of link documents is concerned, learned counsel argued
that the defendant failed to establish that earlier he executed a mortgage
in favour of plaintiffs whereunder he delivered those documents.
Hence, such an argument is preposterous. Against argument No.4 of the
appellants, learned counsel would submit that Exs.A.1 and A.3 were in
fact not required stamp duty and penalty and even assuming so, since
those documents were marked as there being no objection, the appellants
are debarred from raising such objection in the appeal. Against argument
No.6, he would contend that plaintiffs were always ready and willing to
perform their part of contract and in fact, they paid a substantial portion
of the contracted amount i.e, Rs.1,40,000/- out of Rs.1,80,000/- on the
date of agreement to sell itself and further, they requested him to
intimate his bank account number so as to deposit the balance amount
but the defendant kept mum and therefore, plaintiffs cannot be blamed.
b) Finally, he argued that the dismissal of O.S.No.901 of 1995 will
not have any bearing on O.S.No.630 of 1988 as the said suit was
dismissed on the technical ground that an agreement to sell can only be
used as a shield but not as a sword and the suit for mere injunction
without seeking for the relief of specific performance was not
maintainable. He thus prayed to dismiss the appeal.
8) In the light of above rival arguments, the points that arise for
consideration in this appeal are:
(i) Whether Ex.A.1agreement to sell is genuine?
(ii) If point No.1 is held in affirmative, whether defendant had no
right to execute Ex.A.1 on the ground that the suit property was
ancestral property and whether such a plea was specifically
taken in the suit and if not what was its consequence?
(iii) Whether plaintiffs scrupulously performed their part of
contract?
(iv) Whether the argument that Ex.A.1 is inadmissible in evidence
for want of registration and stamp duty penalty is available to
the defendant?
(v) Whether the judgment in O.S.No.901 of 1995 had any adverse
impact on O.S.No.630 of 1988?
(vi) To what relief?
9) POINT No.1: Much ink need not be flown to decide the genuinity
of Ex.A.1agreement to sell, for, the plaintiffs through their oral
evidence and Exs.A.1 to A.3documents relating to sale transaction
and Exs.A.4 to A.10link documents could establish the genuinity of
sale agreement. Though the defendant in his written statement denied
execution of Ex.A.1 and took the plea that the plaintiffs by playing fraud
on him and applying force and compulsion obtained his signatures on
blank paper and created Ex.A.1, he did not further specify under what
circumstances and in what manner the plaintiffs played fraud on him and
applied force and compulsion on him. It should be noted, as per Order
VI Rule 4 CPC when a party takes the plea of misrepresentation, fraud,
breach of trust, willful default or undue influence etc., particulars of
such act must be given. It is not enough to use general words such as
fraud, deceit etc., without narrating the method and manner of
perpetrating such acts for Court to take notice. However, in the instant
case, the defendant woefully failed to give the particulars of the fraud
alleged. Hence there was no strong basis in the pleadings about the
fraud. Further, in Ex.A.1 none other than the two sons of the defendant
namely Ramesh (appellant No.5) and S.Rajeshwar (appellant No.4)
signed as attestors. If really fraud was committed on defendant, certainly
the defendant and his sons would not have kept silent. Their
conspicuous silence itself shows Ex.A.1 was a genuine document.
Further, the defendant did not give evidence in support of his plea that
Ex.A.1 was a fraudulent document. He only examined one of his sons
Seelam Narsaiah (DW.1) who stated that he did not know about the
agreement to sell. In such circumstances, though defendant was aged
and unable to move, still he ought to have taken steps to get him
examined through an Advocate Commissioner. Hence, the evidence of
DW.1 will not help to establish the aspect of fraud. DW.2 no doubt
stated as if in the middle of December, 1986, the first plaintiff forcibly
evicted the defendant from the suit house and at that time he obtained
the signatures of the defendant on blank stamp papers. However, his
evidence proved false in the light of the suggestion given by the
defendant in the cross-examination of PW.1. It was suggested that since
the plaintiffs have not paid the balance of sale consideration under
Ex.A.1, the defendant executed another agreement in favour of
D.Balaiah and others. This crucial suggestion itself implies the
admission of defendant about the genuinity of Ex.A.1. Therefore, as
rightly observed by the trial Court, there can be no demur that Ex.A.1 is
a genuine document. The presence of link documents in the custody of
plaintiffs also gives strength to the genuinity of Exs.A.1 and A.3. Then
delivery of link documents is concerned, there was no plea in the written
statement that earlier the defendant executed a mortgage in favour of
plaintiffs and in that context he delivered all the link documents. Hence,
such an argument is not available to the defendant now. This point is
answered accordingly in favour of plaintiffs and against defendant.
10) POINT No.2: As discussed in point No.1 infra, except the plea of
fraud, defendant did not take a specific plea to the effect the suit
property was his ancestral property and himself and his sons constituted
a coparcenary and therefore, he had no right to execute Ex.A.1. On the
other hand in Ex.A.1, the defendant styled himself as absolute owner
and possessor of the suit schedule property. His two sons who signed on
Ex.A.1 as attestors did not raise any objection for execution of Ex.A.1. It
cannot be assumed that the other sons of the defendant did not know
about Ex.A.1 and that they did not approve it because DW.1 and his
brothers did not take any action against Ex.A.1 till now on the ground
that the property was ancestral property. Hence, due to absence of
specific plea in the written statement and also due to the conduct of the
defendant and his sons, the said argument is not available to the
defendant. In the decisions cited by the respondents, the rule laid down
was that the decision of the Court in a case cannot be based outside the
pleadings of the parties. In that view, the decision in Shri Kashinath
Rajaram Kasabes case (1 supra), cited by appellants has no application.
In view of the above discussion, it is held defendant was empowered to
execute Ex.A.1. This point is answered accordingly.
11) POINT No.3: It is contended that plaintiffs do not deserve
specific performance as they failed to perform their part of contract
scrupulously. This argument, it must be held, is not tenable. Exs.A1 and
A2 would show that out of sale consideration of Rs.1,80,000/- the
plaintiffs paid substantial amount of Rs.1,40,000/- on the date of
agreement itself. As per Ex.A1 the balance amount has to be paid at the
time of registration. Under Ex.A13telegraphic notice the plaintiffs
made clear that they were ready and willing to pay the balance sale
consideration. PW1 stated they requested the defendant to furnish his
bank account number to enable them to deposit balance sale
consideration but defendant failed to furnish his bank account. In view
of all these, plaintiffs are held to have performed their part of contract.
12) POINT No.4: Regarding this point, the argument is that though
under Ex.A1agreement to sell possession was not delivered, however,
delivery of possession was effected through Ex.A3letter dated
05.03.1988 pursuant to the agreement to sell and therefore, even though
delivery was subsequent to Ex.A1, still Exs.A1 and A3 would fall within
the ambit of Article 47-A of Schedule I-A of Indian Stamp Act and they
are liable for registration and stamp duty and penalty and since those
requirements were not met, Exs.A1 and A3 are liable to be de-exhibited
and consequently suit is liable to be dismissed.
13) Ex.A1 is the agreement to sell dated 19.12.1986 whereunder the
defendant agreed to sell the suit property to the plaintiffs. In this
document there is no recital to the effect that possession of the sale
agreement property was delivered to plaintiffs. Therefore, naturally
Ex.A1 does not fall within the mischief of Article 47-A. Then, Ex.A3 is
concerned, it is a letter dated 05.03.1988 executed by defendant in
favour of 1st plaintiff stating that pursuant to Ex.A1 agreement, physical
possession of the suit property was handed over w.e.f. 05.03.1988. Thus,
as rightly argued by the appellants though the property was not delivered
under Ex.A1, it was delivered under Ex.A3. The legal effect of such a
subsequent delivery under a different instrument needs to be discussed.
a) In Jannuchander Babu vs. Manchikatla Satyanarayana and
others a learned single Judge of this Court placing reliance on earlier
Division Bench decision in B.Ratnamala vs. D.Rudramma held thus:
Para 5: In all cases where a document contains a recital
recording delivery of possession of property in pursuant of an
agreement of sale, whether by way of an endorsement on the
reverse of the agreement, or under a separate receipt, it has to
be stamped as a sale deed as contemplated by Article 47-A
Schedule 1-A of Stamp Act.
Para 6: The contention that a document evidencing receipt of
money need be stamped only as a receipt in spite of the fact that
it contains a recital recording delivery of possession of property
in pursuance of an agreement of sale, cannot be accepted in
view of Sections 5 and 6 of Stamp Act. As stated earlier since an
agreement of sale followed by or evidencing delivery of
possession of property agreed to be sold, is chargeable as a
sale deed, as per Article 47-A of Schedule 1-A of Stamp Act, a
document evidencing receipt of the balance of sale
consideration due and payable as per the agreement, coupled
with a recital recording delivery of possession of property
agreed to be sold, also has to be stamped as a sale deed
(Emphasis supplied). In view thereof the contention that
collecting stamp duty on a document (receipt) containing a
recital recording delivery of possession of property subsequent
to the agreement of sale, in cases where the possession of the
property is not delivered on the date of agreement of sale,
tantamounts to collecting stamp duty on the transaction but not
the instrument has no force.
In Dauluru Ramachandra Raos case(2 supra) cited by the
Appellants also, same view is expressed.
In view of the above, though Ex.A1 does not fall within the ambit
of Article 47-A since no delivery of possession was effected there under,
still Ex.A3 falls under Article 47-A because delivery of possession was
effected through it. Ex.A3 was written on plain paper and no stamp duty
and penalty were paid. This is with regard to the requirement under
Stamp Act.
b) Sofaras registration is concerned, sub-section (g) was introduced
to Section 17(1) of the Registration Act, 1908 to the effect that
agreement of sale of immovable property of the value of 100 rupees and
upwards requires compulsory registration. However, this amendment
was brought under A.P. Act 4 of 1999 w.e.f. 01.04.1999. Since Exs.A1
and A3 were executed long prior to the aforesaid amendment, they do
not require registration.
c) Thus, in essence, Ex.A1 is admissible in evidence, but Ex.A3 is
not admissible. However, the record shows that the defendant has not
raised any objection when Exs.A1 and A3 were tendered in evidence
during trial and hence, they were admitted in evidence. Hence, the point
is whether the defendant can raise such argument in the appeal.
14) Divergent views were expressed by the Apex Court in this regard.
In R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami and
V.P. Temple and another the question before the Apex Court was
whether Ex.A30photostat copy of the order passed by Assistant
Commissioner H.R. and C.E. Administration Department, Coimbatore,
and Ex.A34photo copy of rent agreement, which were marked as
Exhibits in the trial without objection, can be questioned in the appeal.
In this context, the Apex Court while classifying the objections as to the
admissibility of documents in evidence into two classes held thus:
Para 20: xx xx xx.. The objections as to admissibility of
documents in evidence may be classified into two classes:- (i) an
objection that the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection does not
dispute the admissibility of the document in evidence but is
directed towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because a
document has been marked as 'an exhibit', an objection as to its
admissibility is not excluded and is available to be raised even
at a later stage or even in appeal or revision. In the latter case,
the objection should be taken when the evidence is tendered and
once the document has been admitted in evidence and marked as
an exhibit, the objection that it should not have been admitted in
evidence or that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage subsequent
to the marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test is whether an
objection, if taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and
resort to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party entitled
to object allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the made
of proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two reasons;
firstly, it enables the Court to apply its mind and pronounce its
decision on the question of admissibility then and there; and
secondly, in the event of finding of the Court on the mode of
proof sought to be adopted going against the party tendering the
evidence the opportunity of seeking indulgence of the Court for
permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, is available
to the party leading the evidence.. Such practice and procedure
is fair to both the parties. Out of the two types of objections,
referred to hereinabove in the later case, failure to raise a
prompt and timely objection amounts to waiver of the necessity
for insisting on formal proof of a document, the document itself
which is sought to be proved being admissible in evidence. In
the first case, acquiescence would be no bar to raising the
objection in a superior court.
15) A learned single Judge of this Court in Srinivasa Builders vs.
A. Janga Reddy placing reliance on R.V.E.Venkatachala Gounders
case (9 supra) and some other decisions has observed that the mode of
proof of document is a matter of procedure while its admissibility is
substantive law, such as Registration Act, Stamp act or other specific
provisions. He held that the objection regarding insufficient stamp of a
document can be raised even at a later stage. It may be noted that the
learned Judge also considered a contra decision of Apex Court reported
in Shyamal Kumar Roy vs. Sushil Kumar Agarwal . In the said case
the Apex Court held that when once the document is admitted without
being objected on the ground of insufficiency of stamp, such an
objection cannot be raised later in view of Section 36 of Indian Stamp
Act. However, learned Judge of this Court preferred R.V.E.
Venkatachala Gounders case (9 supra) to Shyamal Kumar Roys case
(11 supra) on the ground that Venkatachala Gounders case was not
referred in the later decision of Shyamal Kumar Roy.
16) In view of the above discussion, the defendant is entitled to raise
the objection regarding admissibility of Ex.A3 in evidence though such
an objection was not raised during trial. Since no stamp duty and penalty
were paid on Ex.A3, the said document is directed to be de-exhibited
from the record.
In the result, Ex.A1agreement to sell shall hold good but since
Ex.A3 is de-exhibited from the record, the plaintiffs cannot claim
possession of the suit property w.e.f. 05.03.1988 as recited in Ex.A3.
However, since Ex.A1 is held to be genuine, and as the plaintiffs along
with specific performance, sought for granting any other relief, this
Court in the interest of justice, can exercise its discretion and grant
delivery of possession also.
This point is answered accordingly.
17) POINT No.5: The dismissal of O.S.No.901 of 1995 will not have
any adverse impact on O.S.No.630 of 1988 because the former suit was
dismissed on the technical ground that an agreement to sell can only be
used as a protective shield but not as a sword to file injunction suit and
the plaintiff has to seek alternative and efficacious relief of specific
performance. The plaintiffs have, in fact, filed the specific performance
suit and therefore, the dismissal of O.S.No.901 of 1995 is not a
consequence.
18) It may be noted, the argument that since Ex.A.11GPA executed
by defendant in favour of one Ramagiri Venkata Ramanaiah was not
registered, the same is not valid has no force and significance because,
the suit was filed by the plaintiffs directly against the defendant and not
against his GPA holder and the defendant also contested the suit by
himself but not through his GPA holder. As such, the deficiency if any
in Ex.A.11 is of no consequence.
19) In the result, this Appeal is dismissed by confirming the decree
and judgment dated 16.12.1998 passed by the trial Court in O.S.No.630
of 1988 and ordered as follows:
a) The respondent Nos.2 and 5 to 10 are directed to deposit the
balance sale consideration of Rs.40,000/-(Rupees Forty Thousand
only) before the trial Court on or before 28.03.2017 if not
deposited already.
b) The appellant Nos.2, 3, 5 to 11 are directed to receive the said
balance sale consideration and execute the registered sale deed in
favour of respondent Nos.2 and 5 to 10 in terms of Ex.A.1
agreement to sell dated 19.12.1986 within one month from
28.03.2017 and put them in possession of the suit schedule
property, failing which the respondent Nos.2 and 5 to 10 are at
liberty to get it done through the process of Court.
c) No costs in the appeal.
As a sequel, miscellaneous petitions pending if any, shall stand
dismissed.
__________________________
U. DURGA PRASAD RAO, J
Dt. 28.02.2017
C.C.C.A. No.57 of 1999
28-02-2017
Seelam Mallaiah (died) per LRs.and others. ... Appellants
P.Narasinga Rao (died) per LRs.and others. . Respondents
Counsel for Appellants: Sri T.Viswanadha Sastry
Counsel for Respondents: Sri Meherchand Nori
<Gist:
>Head Note:
? Cases referred:
1) AIR 2015 (NOC) 202 (Bom.)
2) 1996 (3) ALD 919
3) AIR 2015 Rajasthan 24
4) (1977) 4 Supreme Court Cases 402
5) 1995 (1) ALT 511
6) 1993 Supp (3) Supreme Court Cases 549
7) 2003 (2) ALD 640
8) 1999 (6) ALD 160
9) AIR 2003 SC 4548
10) MANU/AP/0041/2016
11) (2006) 11 SCC 331
HONBLE SRI JUSTICE U. DURGA PRASAD RAO
C.C.C.A.No.57 of 1999
JUDGMENT:
The unsuccessful defendant in the Court below preferred the
instant appeal aggrieved by the common judgment dated 16.12.1998 in
O.S.No.630 of 1988 passed by V Senior Civil Judge, City Civil Court,
Hyderabad, whereby and whereunder the learned Judge decreed the
plaintiffs suit filed for specific performance of agreement of sale dated
19.12.1986.
2) The parties in this appeal are referred as they stood before the trial
Court in O.S.No.630 of 1988 and defendants 2 and 3 in O.S.No.901 of
1995 are referred as third parties.
3) The factual matrix of the case is thus:
a) The case of the plaintiffs is that defendant is the absolute owner of
suit schedule property bearing House No.4-7-412 to 415 admeasuring
110 sq. yards situated at Esamiah Bazar, Hyderabad which was
purchased by him through registered sale deed dated 22.12.1962 and
ever since he had been in possession and enjoyment of the same. While
so, the defendant entered into an agreement of sale dated 19.12.1986
(Ex.A1) with the plaintiffs in respect of suit schedule property for total
consideration of Rs.1,80,000/- and received Rs.1,40,000/- towards
advance, agreeing to receive balance amount of Rs.40,000/- at the time
of registration. After entering the agreement the defendant evicted the
tenants and delivered physical possession of the suit schedule property
to the plaintiffs on 05.03.1988 and since then the plaintiffs are in
possession and enjoyment of the same.
b) The further case of the plaintiffs is that while the matter stood
thus, the defendant tried to alienate the suit schedule property to third
parties hence, they lodged a criminal complaint on 05.04.1988 before
the SHO, Sultan Bazar and they also issued a notice to the defendant
asking him to execute registered sale deed stating that they were ready
and willing to pay the balance sale consideration at the time of
registration, but there was no response from the defendant side.
c) The further case of the plaintiffs is that when the defendant tried
to dispossess them from the suit premises on 02.04.1988 and
05.04.1988, they filed suitO.S.No.1365 of 1988 (renumbered as
O.S.No.901 of 1995) on the file of VI Assistant Judge, City Civil Court,
Hyderabad for perpetual injunction and they also filed I.A.No.275 of
1988 for interim injunction which was granted. Despite the injunction
order the defendant tried to alienate the suit property to third parties.
Hence the suit.
d) The defendant filed written statement denying execution of
Ex.A1agreement; receipt of advance amount of Rs.1,40,000/- and
delivery of physical possession. His case was that he never intended to
sell the suit schedule property to the plaintiffs, but they by force,
compulsion and playing fraud obtained his signatures on blank papers.
The plaintiffs paid Rs.90,000/- on different dates and got released the
documents. He also contended that Ex.A1suit agreement is vexatious.
He never delivered possession of the suit property to the plaintiffs, but
they filed police complaint and forcibly thrown him out from the suit
schedule property. The suit agreement which was obtained on blank
papers, was bad and unenforceable. He also contended that suit was bad
for non-joinder of parties such as D.Balaiah and others who are parties
to the suitO.S.No.1365 of 1988 (renumbered as O.S.No.901 of 1995).
e) Basing on the above pleadings, the trial Court framed the
following issues:
1) Whether the plaintiffs were always ready and willing to
perform their part of the contract?
2) Whether the plaintiffs are entitled for specific performance of
agreement of sale dt.19.12.1986?
3) Whether the suit is bad for non-joinder of necessary parties?
4) To what relief?
f) During trial PW.1 was examined and Exs.A1 to A13 were marked
on behalf of plaintiffs. DWs.1 to 3 were examined on behalf of
defendant but no documents were marked.
g) The trial Court after hearing both sides and on considering the
oral and documentary evidence, on issue No.3 observed that D.Balaiah
and his sons were neither necessary nor proper parties to the suit; on
issue Nos.1 and 2 the trial Court observed that Ex.A1agreement of
sale was true, valid and enforceable and plaintiffs were always ready
and willing to perform their part of contract and they are entitled for
specific performance and accordingly decreed the suit.
Hence, the appeal.
4 a) During the pendency of appeal, sole appellant died and his LRs.
were brought on record as appellants 2 to 6 in CMP No.7796 of 2000
dated 16.06.2000. Pending appeal, appellant No.4 died and his L.Rs.
were brought on record as appellants 7 to 11 in CCCA MP No.589 of
2015 dated 15.06.2016.
b) R1 died and his LRs. were brought on record as respondents 5 to
10 in CCCA MP No.383 of 2006 dated 03.07.2006.
5) Heard arguments of Sri T.Viswanadha Sastry, learned counsel for
appellants and Sri Meherchand Nori, learned counsel for respondents.
6 a) Deprecating the judgment, learned counsel for appellants firstly
argued that the defendant never executed Ex.A.1agreement and
delivered possession thereafter and the plaintiffs taking advantage of his
illiteracy, fabricated Exs.A.1 to A.3 obtaining his signatures on blank
papers by playing fraud on him. This fact was amply established through
the evidence of DWs.1 and 2 but the trial Court miserably failed to
consider their evidence in proper manner and erroneously decreed the
suit.
b) Secondly, he would argue that the defendant never delivered the
link documents connecting to Ex.A.1 as alleged by the plaintiffs and on
the other hand, sometime prior to the alleged agreement, the defendant
mortgaged suit property to the plaintiffs and in that connection he
delivered his documents and keeping those documents with them, the
plaintiffs fabricated Ex.A.1 and falsely claimed as if the link documents
were delivered to them.
c) Thirdly and alternatively he would argue, even assuming the
defendant executed Ex.A.1, the same is not valid because the suit
property is an ancestral property wherein the defendant and his five sons
have equal share, in which event, the suit for specific performance
without impleading them is bad for non-joinder of necessary parties. He
vehemently argued that though issue No.3 was framed to that effect, the
trial Court failed to answer the same. Regarding the legal effect of non-
joinder of other coparceners, he placed reliance on the decision reported
in Shri Kashinath Rajaram Kasabe and others vs. Shri Ramchandra
Tukaram Kasabe and others .
d) Fourthly, he contended that Exs.A.1 and A.3 are compulsorily
registrable and exigible to stamp duty penalty without meeting which
requirements, they are inadmissible in evidence and therefore, they are
liable to be rejected. He would further argue that though delivery of
possession was not effected through Ex.A.1 and allegedly effected
through another document i.e, Ex.A.3, still they require registration and
stamp duty. He cited the decision in Dauluru Ramachandra Rao vs.
Bhogi Venkata Ramana .
e) Fifthly, learned counsel would argue that Ex.A.11GPA
executed by defendant in favour of Ramagiri Venkata Ramanaiah is
compulsorily registrable and amenable to stamp duty penalty and since
such requirements were not met, the same is liable to be rejected. He
relied upon the decision in Jai Kumar vs. Hanuman and others .
f) Sixthly, he argued that even assuming that Ex.A.1 is genuine, still
plaintiffs are not entitled to specific performance as they failed to
perform their part of contract scrupulously.
g) Finally, he argued that the suitO.S.No.901 of 1995 filed by the
plaintiff for perpetual injunction in respect of the suit property was
dismissed and since no appeal is filed against the said judgment, the
plaintiff cannot maintain the suit for specific performance as he is not
entitled to possession. He thus prayed to allow the appeal.
7 a) Per contra, while supporting the judgment learned counsel for
respondents in reply to arguments 1 to 3 of the appellants, submitted that
in the suit the sheet anchor of the defence was that the defendant never
executed agreement to sell and it was fabricated and that he never
delivered the link documents to the plaintiffs. Except that there was no
pleading that the suit property was his ancestral property and therefore,
he had no right to execute agreement to sell. In fact, in Ex.A.1 he
claimed suit property as self-acquired property. His two sons who acted
as attestors did not dispute this fact. Therefore, the defence argument in
the suit that the suit property was an ancestral property and defendant
had no right to execute agreement to sell and that the suit was bad for
non-joinder of necessary parties was rightly rejected by the trial Court.
Learned counsel vehemently argued that a party cannot for the first time
raise a plea during trial or arguments without taking such plea in his
pleadings. Such a plea taken at a later stage will not be accepted by the
Court. On this aspect he relied upon on the following decisions:
(i) Smt. Chander Kali Bai and others vs. Shri Jagdish Singh
Thankur and another
(ii) K.Venkateswarlu vs. Nagarjuna Grameena bank rep. by its
Chairman, Khammam and another
(iii) Ramchandra Kulkarni (dead) by LRs. vs. Dinkar
He thus argued that the said argument cannot be raised by the
appellants again in this appeal. Regarding the argument that Ex.A.1 was
fabricated by obtaining the signatures of the defendant on blank papers,
learned counsel argued that the plaintiffs established the genuinity of
Ex.A.1 through voluminous documentary and oral evidence and further,
in the cross-examination of PW.1 the defendant suggested as if he
executed another agreement to sell in favour of D. Balaiah and others
since the plaintiffs failed to pay the balance sale consideration under
Ex.A.1, which implies the defendant admits the execution of Ex.A.1.
Then delivery of link documents is concerned, learned counsel argued
that the defendant failed to establish that earlier he executed a mortgage
in favour of plaintiffs whereunder he delivered those documents.
Hence, such an argument is preposterous. Against argument No.4 of the
appellants, learned counsel would submit that Exs.A.1 and A.3 were in
fact not required stamp duty and penalty and even assuming so, since
those documents were marked as there being no objection, the appellants
are debarred from raising such objection in the appeal. Against argument
No.6, he would contend that plaintiffs were always ready and willing to
perform their part of contract and in fact, they paid a substantial portion
of the contracted amount i.e, Rs.1,40,000/- out of Rs.1,80,000/- on the
date of agreement to sell itself and further, they requested him to
intimate his bank account number so as to deposit the balance amount
but the defendant kept mum and therefore, plaintiffs cannot be blamed.
b) Finally, he argued that the dismissal of O.S.No.901 of 1995 will
not have any bearing on O.S.No.630 of 1988 as the said suit was
dismissed on the technical ground that an agreement to sell can only be
used as a shield but not as a sword and the suit for mere injunction
without seeking for the relief of specific performance was not
maintainable. He thus prayed to dismiss the appeal.
8) In the light of above rival arguments, the points that arise for
consideration in this appeal are:
(i) Whether Ex.A.1agreement to sell is genuine?
(ii) If point No.1 is held in affirmative, whether defendant had no
right to execute Ex.A.1 on the ground that the suit property was
ancestral property and whether such a plea was specifically
taken in the suit and if not what was its consequence?
(iii) Whether plaintiffs scrupulously performed their part of
contract?
(iv) Whether the argument that Ex.A.1 is inadmissible in evidence
for want of registration and stamp duty penalty is available to
the defendant?
(v) Whether the judgment in O.S.No.901 of 1995 had any adverse
impact on O.S.No.630 of 1988?
(vi) To what relief?
9) POINT No.1: Much ink need not be flown to decide the genuinity
of Ex.A.1agreement to sell, for, the plaintiffs through their oral
evidence and Exs.A.1 to A.3documents relating to sale transaction
and Exs.A.4 to A.10link documents could establish the genuinity of
sale agreement. Though the defendant in his written statement denied
execution of Ex.A.1 and took the plea that the plaintiffs by playing fraud
on him and applying force and compulsion obtained his signatures on
blank paper and created Ex.A.1, he did not further specify under what
circumstances and in what manner the plaintiffs played fraud on him and
applied force and compulsion on him. It should be noted, as per Order
VI Rule 4 CPC when a party takes the plea of misrepresentation, fraud,
breach of trust, willful default or undue influence etc., particulars of
such act must be given. It is not enough to use general words such as
fraud, deceit etc., without narrating the method and manner of
perpetrating such acts for Court to take notice. However, in the instant
case, the defendant woefully failed to give the particulars of the fraud
alleged. Hence there was no strong basis in the pleadings about the
fraud. Further, in Ex.A.1 none other than the two sons of the defendant
namely Ramesh (appellant No.5) and S.Rajeshwar (appellant No.4)
signed as attestors. If really fraud was committed on defendant, certainly
the defendant and his sons would not have kept silent. Their
conspicuous silence itself shows Ex.A.1 was a genuine document.
Further, the defendant did not give evidence in support of his plea that
Ex.A.1 was a fraudulent document. He only examined one of his sons
Seelam Narsaiah (DW.1) who stated that he did not know about the
agreement to sell. In such circumstances, though defendant was aged
and unable to move, still he ought to have taken steps to get him
examined through an Advocate Commissioner. Hence, the evidence of
DW.1 will not help to establish the aspect of fraud. DW.2 no doubt
stated as if in the middle of December, 1986, the first plaintiff forcibly
evicted the defendant from the suit house and at that time he obtained
the signatures of the defendant on blank stamp papers. However, his
evidence proved false in the light of the suggestion given by the
defendant in the cross-examination of PW.1. It was suggested that since
the plaintiffs have not paid the balance of sale consideration under
Ex.A.1, the defendant executed another agreement in favour of
D.Balaiah and others. This crucial suggestion itself implies the
admission of defendant about the genuinity of Ex.A.1. Therefore, as
rightly observed by the trial Court, there can be no demur that Ex.A.1 is
a genuine document. The presence of link documents in the custody of
plaintiffs also gives strength to the genuinity of Exs.A.1 and A.3. Then
delivery of link documents is concerned, there was no plea in the written
statement that earlier the defendant executed a mortgage in favour of
plaintiffs and in that context he delivered all the link documents. Hence,
such an argument is not available to the defendant now. This point is
answered accordingly in favour of plaintiffs and against defendant.
10) POINT No.2: As discussed in point No.1 infra, except the plea of
fraud, defendant did not take a specific plea to the effect the suit
property was his ancestral property and himself and his sons constituted
a coparcenary and therefore, he had no right to execute Ex.A.1. On the
other hand in Ex.A.1, the defendant styled himself as absolute owner
and possessor of the suit schedule property. His two sons who signed on
Ex.A.1 as attestors did not raise any objection for execution of Ex.A.1. It
cannot be assumed that the other sons of the defendant did not know
about Ex.A.1 and that they did not approve it because DW.1 and his
brothers did not take any action against Ex.A.1 till now on the ground
that the property was ancestral property. Hence, due to absence of
specific plea in the written statement and also due to the conduct of the
defendant and his sons, the said argument is not available to the
defendant. In the decisions cited by the respondents, the rule laid down
was that the decision of the Court in a case cannot be based outside the
pleadings of the parties. In that view, the decision in Shri Kashinath
Rajaram Kasabes case (1 supra), cited by appellants has no application.
In view of the above discussion, it is held defendant was empowered to
execute Ex.A.1. This point is answered accordingly.
11) POINT No.3: It is contended that plaintiffs do not deserve
specific performance as they failed to perform their part of contract
scrupulously. This argument, it must be held, is not tenable. Exs.A1 and
A2 would show that out of sale consideration of Rs.1,80,000/- the
plaintiffs paid substantial amount of Rs.1,40,000/- on the date of
agreement itself. As per Ex.A1 the balance amount has to be paid at the
time of registration. Under Ex.A13telegraphic notice the plaintiffs
made clear that they were ready and willing to pay the balance sale
consideration. PW1 stated they requested the defendant to furnish his
bank account number to enable them to deposit balance sale
consideration but defendant failed to furnish his bank account. In view
of all these, plaintiffs are held to have performed their part of contract.
12) POINT No.4: Regarding this point, the argument is that though
under Ex.A1agreement to sell possession was not delivered, however,
delivery of possession was effected through Ex.A3letter dated
05.03.1988 pursuant to the agreement to sell and therefore, even though
delivery was subsequent to Ex.A1, still Exs.A1 and A3 would fall within
the ambit of Article 47-A of Schedule I-A of Indian Stamp Act and they
are liable for registration and stamp duty and penalty and since those
requirements were not met, Exs.A1 and A3 are liable to be de-exhibited
and consequently suit is liable to be dismissed.
13) Ex.A1 is the agreement to sell dated 19.12.1986 whereunder the
defendant agreed to sell the suit property to the plaintiffs. In this
document there is no recital to the effect that possession of the sale
agreement property was delivered to plaintiffs. Therefore, naturally
Ex.A1 does not fall within the mischief of Article 47-A. Then, Ex.A3 is
concerned, it is a letter dated 05.03.1988 executed by defendant in
favour of 1st plaintiff stating that pursuant to Ex.A1 agreement, physical
possession of the suit property was handed over w.e.f. 05.03.1988. Thus,
as rightly argued by the appellants though the property was not delivered
under Ex.A1, it was delivered under Ex.A3. The legal effect of such a
subsequent delivery under a different instrument needs to be discussed.
a) In Jannuchander Babu vs. Manchikatla Satyanarayana and
others a learned single Judge of this Court placing reliance on earlier
Division Bench decision in B.Ratnamala vs. D.Rudramma held thus:
Para 5: In all cases where a document contains a recital
recording delivery of possession of property in pursuant of an
agreement of sale, whether by way of an endorsement on the
reverse of the agreement, or under a separate receipt, it has to
be stamped as a sale deed as contemplated by Article 47-A
Schedule 1-A of Stamp Act.
Para 6: The contention that a document evidencing receipt of
money need be stamped only as a receipt in spite of the fact that
it contains a recital recording delivery of possession of property
in pursuance of an agreement of sale, cannot be accepted in
view of Sections 5 and 6 of Stamp Act. As stated earlier since an
agreement of sale followed by or evidencing delivery of
possession of property agreed to be sold, is chargeable as a
sale deed, as per Article 47-A of Schedule 1-A of Stamp Act, a
document evidencing receipt of the balance of sale
consideration due and payable as per the agreement, coupled
with a recital recording delivery of possession of property
agreed to be sold, also has to be stamped as a sale deed
(Emphasis supplied). In view thereof the contention that
collecting stamp duty on a document (receipt) containing a
recital recording delivery of possession of property subsequent
to the agreement of sale, in cases where the possession of the
property is not delivered on the date of agreement of sale,
tantamounts to collecting stamp duty on the transaction but not
the instrument has no force.
In Dauluru Ramachandra Raos case(2 supra) cited by the
Appellants also, same view is expressed.
In view of the above, though Ex.A1 does not fall within the ambit
of Article 47-A since no delivery of possession was effected there under,
still Ex.A3 falls under Article 47-A because delivery of possession was
effected through it. Ex.A3 was written on plain paper and no stamp duty
and penalty were paid. This is with regard to the requirement under
Stamp Act.
b) Sofaras registration is concerned, sub-section (g) was introduced
to Section 17(1) of the Registration Act, 1908 to the effect that
agreement of sale of immovable property of the value of 100 rupees and
upwards requires compulsory registration. However, this amendment
was brought under A.P. Act 4 of 1999 w.e.f. 01.04.1999. Since Exs.A1
and A3 were executed long prior to the aforesaid amendment, they do
not require registration.
c) Thus, in essence, Ex.A1 is admissible in evidence, but Ex.A3 is
not admissible. However, the record shows that the defendant has not
raised any objection when Exs.A1 and A3 were tendered in evidence
during trial and hence, they were admitted in evidence. Hence, the point
is whether the defendant can raise such argument in the appeal.
14) Divergent views were expressed by the Apex Court in this regard.
In R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami and
V.P. Temple and another the question before the Apex Court was
whether Ex.A30photostat copy of the order passed by Assistant
Commissioner H.R. and C.E. Administration Department, Coimbatore,
and Ex.A34photo copy of rent agreement, which were marked as
Exhibits in the trial without objection, can be questioned in the appeal.
In this context, the Apex Court while classifying the objections as to the
admissibility of documents in evidence into two classes held thus:
Para 20: xx xx xx.. The objections as to admissibility of
documents in evidence may be classified into two classes:- (i) an
objection that the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection does not
dispute the admissibility of the document in evidence but is
directed towards the mode of proof alleging the same to be
irregular or insufficient. In the first case, merely because a
document has been marked as 'an exhibit', an objection as to its
admissibility is not excluded and is available to be raised even
at a later stage or even in appeal or revision. In the latter case,
the objection should be taken when the evidence is tendered and
once the document has been admitted in evidence and marked as
an exhibit, the objection that it should not have been admitted in
evidence or that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any stage subsequent
to the marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test is whether an
objection, if taken at the appropriate point of time, would have
enabled the party tendering the evidence to cure the defect and
resort to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party entitled
to object allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the made
of proof. On the other hand, a prompt objection does not
prejudice the party tendering the evidence, for two reasons;
firstly, it enables the Court to apply its mind and pronounce its
decision on the question of admissibility then and there; and
secondly, in the event of finding of the Court on the mode of
proof sought to be adopted going against the party tendering the
evidence the opportunity of seeking indulgence of the Court for
permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, is available
to the party leading the evidence.. Such practice and procedure
is fair to both the parties. Out of the two types of objections,
referred to hereinabove in the later case, failure to raise a
prompt and timely objection amounts to waiver of the necessity
for insisting on formal proof of a document, the document itself
which is sought to be proved being admissible in evidence. In
the first case, acquiescence would be no bar to raising the
objection in a superior court.
15) A learned single Judge of this Court in Srinivasa Builders vs.
A. Janga Reddy placing reliance on R.V.E.Venkatachala Gounders
case (9 supra) and some other decisions has observed that the mode of
proof of document is a matter of procedure while its admissibility is
substantive law, such as Registration Act, Stamp act or other specific
provisions. He held that the objection regarding insufficient stamp of a
document can be raised even at a later stage. It may be noted that the
learned Judge also considered a contra decision of Apex Court reported
in Shyamal Kumar Roy vs. Sushil Kumar Agarwal . In the said case
the Apex Court held that when once the document is admitted without
being objected on the ground of insufficiency of stamp, such an
objection cannot be raised later in view of Section 36 of Indian Stamp
Act. However, learned Judge of this Court preferred R.V.E.
Venkatachala Gounders case (9 supra) to Shyamal Kumar Roys case
(11 supra) on the ground that Venkatachala Gounders case was not
referred in the later decision of Shyamal Kumar Roy.
16) In view of the above discussion, the defendant is entitled to raise
the objection regarding admissibility of Ex.A3 in evidence though such
an objection was not raised during trial. Since no stamp duty and penalty
were paid on Ex.A3, the said document is directed to be de-exhibited
from the record.
In the result, Ex.A1agreement to sell shall hold good but since
Ex.A3 is de-exhibited from the record, the plaintiffs cannot claim
possession of the suit property w.e.f. 05.03.1988 as recited in Ex.A3.
However, since Ex.A1 is held to be genuine, and as the plaintiffs along
with specific performance, sought for granting any other relief, this
Court in the interest of justice, can exercise its discretion and grant
delivery of possession also.
This point is answered accordingly.
17) POINT No.5: The dismissal of O.S.No.901 of 1995 will not have
any adverse impact on O.S.No.630 of 1988 because the former suit was
dismissed on the technical ground that an agreement to sell can only be
used as a protective shield but not as a sword to file injunction suit and
the plaintiff has to seek alternative and efficacious relief of specific
performance. The plaintiffs have, in fact, filed the specific performance
suit and therefore, the dismissal of O.S.No.901 of 1995 is not a
consequence.
18) It may be noted, the argument that since Ex.A.11GPA executed
by defendant in favour of one Ramagiri Venkata Ramanaiah was not
registered, the same is not valid has no force and significance because,
the suit was filed by the plaintiffs directly against the defendant and not
against his GPA holder and the defendant also contested the suit by
himself but not through his GPA holder. As such, the deficiency if any
in Ex.A.11 is of no consequence.
19) In the result, this Appeal is dismissed by confirming the decree
and judgment dated 16.12.1998 passed by the trial Court in O.S.No.630
of 1988 and ordered as follows:
a) The respondent Nos.2 and 5 to 10 are directed to deposit the
balance sale consideration of Rs.40,000/-(Rupees Forty Thousand
only) before the trial Court on or before 28.03.2017 if not
deposited already.
b) The appellant Nos.2, 3, 5 to 11 are directed to receive the said
balance sale consideration and execute the registered sale deed in
favour of respondent Nos.2 and 5 to 10 in terms of Ex.A.1
agreement to sell dated 19.12.1986 within one month from
28.03.2017 and put them in possession of the suit schedule
property, failing which the respondent Nos.2 and 5 to 10 are at
liberty to get it done through the process of Court.
c) No costs in the appeal.
As a sequel, miscellaneous petitions pending if any, shall stand
dismissed.
__________________________
U. DURGA PRASAD RAO, J
Dt. 28.02.2017
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