Even on the factum of possession, as claimed by the appellant plaintiff, the Trial Court opined that the appellant plaintiff had failed to prove delivery of possession of the suit property to it by the owners upon execution of the suit agreement dated 30th June, 1977.
The appellant Society appellant in both the appeals before this Court had also filed a suit in respect of the self same land for specific performance of the agreement of sale dated 16th October, 1981 read with the earlier agreement dated 30th June, 1977.
The real companytroversy that needs to be addressed is in reference to the suit filed by the appellant Society, being O.S. No.351/1982 for specific performance of the companytract of sale dated 16th October, 1981 read with the earlier companytract dated 30th June, 1977, directing defendant Nos.1 to 5 owners of the suit property , who are respondent Nos.1 to 5 in Civil Appeal No.6620/2008, to register a proper sale deed in favour of the appellant Society on receiving the balance of sale companysideration at the time of registration or, in the alternative, directing execution and registration of such sale deed by the Court at their expense, and for permanent injunction restraining the 6th defendant respondent Nos.6a.
Civil Appeal No.6625 of 2008 emanates from the said proceedings.
Against the said decision, the appellant preferred A.S. No.1492/1997 before the High Court of Judicature, Andhra Pradesh at Hyderabad.
He denied that they are number in possession or the suit land till he obtain interim injunction order and that he came into possession of the suit land only in pursuance of the injunction orders.
A1 by respondent 1 to 4.
That appeal was number pursued any further in view of the subsequent developments.
A.1 defendant 1 to 4 and its runuinances the plaintiff did number examine the attestors and scribe of it.
Not only Ex.
The plaintiff did number file any document i.e. revenue records or cist receipts to show that he paid any taxes and to say that he was in possession of the plaint schedule property right from the date of Ex.a.1 i.e. from 30.6.1977 till he filed this suit in the year 1982.
Hence, such appeal is devoid of merits.
Subsequently he paid cist, but by then the other suit O.S. No.99/81 was also filed.
There is numberexplanation from the plaintiff for number examining the attestors of it.
Similarly, the appellant Society preferred First Appeal No.1492/1997 before the High Court of Judicature, Andhra Pradesh at Hyderabad, against dismissal of its suit, being O.S. No.351/1982.
A.2 does number bear the signature and reference of defendant 5 that she agreed to join with defendant 1 to 4 for sale of the suit schedule property.
Thus the sale testimony of P.W.1, without examining the attestes, and his companypurchasers is number at all helpful to prove the sale of the suit schedule land and execution of Ex.
The High Court, therefore, dismissed the appeal preferred by the appellant Society and companyfirmed the order of dismissal of suit passed by the Trial Court.
The appellant plaintiff did number file any document to show that the cheque was encashed and availed by defendant No.4 as payment in respect of the suit agreement.
No attempt was made by the appellant plaintiff to companyfront the defendants and discharge the burden by examining any handwriting expert.
As such for number examining the attestors of Ex.
Similarly the evidence of D.Ws.1 to 7 is also number helpful to say the possession and enjoyment of the plaintiffs over the plaint schedule property and also delivery of possession by the defendants 1 to 4 on 30.6.1977 under Ex.
The High Court disposed of the said appeal on that basis.
Civil Appeal No.6620 of 2008 arises from the said proceedings.
On the basis of the pleadings, the Trial Court framed relevant issues and upon companysidering the oral and documentary evidence produced by the appellant plaintiff, answered the material issues against the appellant plaintiff.
A.1 and Ex.
A.1 in his favour of receiving a part of sale companysideration from him.
The High Court found that there was sufficient evidence to accept the said plea urged by defendant No.1.
The High Court was pleased to uphold the finding of fact recorded by the Trial Court against the appellant plaintiff on the material issues.
It is the case of the plaintiff that defendant 5 agreed to sell the property along with defendant 1 to 4.
P.W.1 deposed that the suit land is an agriculture land and he had seen companyy of account No.2 available in the Urban Ceiling Authority Officer mentioning the name of the other defendants as enjoyers of the suit land.
The view so taken by the Trial Court companymended to the High Court and has been affirmed by it.
Having said this, it must necessarily follow that the appellant plaintiff cannot be permitted to take the relief claimed in the suit any further sans proof of execution of suit agreements in respect of which the relief of specific performance is sought.
In such circumstances the agreement Ex.
A.1, as the other defendants i.e., defendant 2 to 4 examined to companyfront their signatures or Ex.
It necessarily follows that there was numberadverse decree or for that matter, any finding recorded against the appellant herein defendant in the said suit to which the appellant can take exception, much less by way of special leave petition.
The sole testimony of PW 1 regarding execution of the suit agreement was number enough to prove its execution.
The obtaining of layout permission from the Gram Panchayat under Ex.
It is doubtful whether this appeal preferred by the appellant against the decision of the High Court dated 9th March, 2006 in First Appeal No.1426/1997 can be taken forward.
A.1 and Ex.
A.1 and execution of it along with defendant 1.
At the same time, the High Court departed from the finding recorded by the Trial Court with regard to the issue as to whether defendant No.1 was a person of unsound mind.
The appellant has also assailed the finding reached by the High Court on the factum of defendant No.1 being of unsound mind.
The fact that during the pendency of the first appeal, a registered sale deed was executed in favour of the appellant in First Appeal No.1426/1997 cannot be the basis to maintain an appeal under Article 136 of the Constitution.
Except identifying the writings and signature of the scribe, the evidence of D.W.2 is number helpful to prove its execution and signatures of defendant 1 to 4 on Ex.
The plaintiff society did number obtain any relinquishment deed of 8 other purchasers under Ex.
A.1 in O.S. No.99/81 and he had been in possession of the same.
Further the attestors are his men and he got them and obtained their signatures on Ex.
to 1g. had filed First Appeal No.1426 of 1997.
A.1 by defendant 1 to 4 infavour of P.W.1 on 30.7.1977.
The companyowner of the property 5th defendant was neither joined as party in the suit agreement dated 16th October, 1981, number was his authority for execution of such agreement forthcoming.
There was numbersignature of defendant No.5 on the suit agreements or any reference to her, much less that she agreed to join with defendant Nos.1 4 for sale of the suit property.
The defendants companytested the said suit and denied having executed the suit agreements dated 30th June 1977 and 16th October, 1981.
PW.1 deposed that Ex.
Thus the plaintiff failed to prove the execution of Ex.
Reason The original respondent No.6, namely, Allu Appalanarayana, had filed a suit for specific performance before the Court of Subordinate Judge, Vijayawada, being Original Suit No.99/1981 for specific performance of the agreement dated 22nd November, 1979 executed in his favour by Puvvada Chandrashekhara Rao and Puvvada Siva Prasad, which was dismissed by the Trial Court on 20th October, 1997.
As such the plaintiff failed to prove execution of sale of the plaint schedule land under Ex.
P.W.1 denied the 6th defendant took possession of the suit schedule property under Ex.
When it is the case the burden is on the plaintiff to prove the execution of Ex.
Sale deed.
There is numberrecital in the suit agreement to the effect that along with defendant Nos.1 4, defendant No.5 had also agreed to sell the property and to execute the sale deed in favour of the appellant plaintiff.
It is the case of the plaintiff that he along with 8 others purchased the property under Ex.a.1 and subsequently they all formed into a Society of the plaintiff and obtained another subsequent agreement from the defendants 1 to 5 under Ex.
and Ex.
If defendant 5 is aware and the plaintiff obtained any companysent or at least intimation to defendant 5, they would have obtained the signature of defendant on Ex.
Defendants 2, 3, and 4 who examined as D.W.2, D.W.3 and D.W.1 respectively denied their signatures on Ex.
Survey stones were painted for the plots and pipes were also arranged for the roads as per the layout and roads were formed.
A.1 to obtain subsequent agreement Ex.
A.W by defendant 1 to 4 prove the execution of Ex.
Except the evidence of P.W.1, there is numberother evidence of attestors to prove Ex.
The defendants have denied having signed any such agreement.
What seems to us is that the adverse findings recorded by the two Courts below against the appellant plaintiff is based on the indisputable facts, such as neither were the attestors and scribe to the suit agreements examined to prove execution thereof by the real owners of the property number was any explanation or justification forthcoming for such failure.
In that sense, both the companyrts have companycurrently opined that the appellant plaintiff failed to prove execution of the suit agreements dated 30th June, 1977 and 16th October, 1981 or of having paid earnest money in furtherance of those agreements and also being put in possession of the suit property, as claimed.
The plaintiff also did number examine any of the other 2 purchasers along with when we purchased and obtained Ex.
Hence, this issue is decided against the plaintiff.
A.2, dt.16.10.1981, the suit in O.S.No.99/81 was already filed against defendants 2 to 4, by defendant 6 herein.
The defendants 1 to 4 also disputed their signatures on Ex.
Notably, neither the agreement dated 30th June, 1977 number the agreement dated 16th October, 1981 is a registered document.
Without examining the attestors during the companyrse of examination of this witness, when the matter is companying up for argument, after closing the evidence of defendant, the plaintiff filing a petition to reopen the matter to examine his witnesses or attestors is number at all a justified ground to blame the defendants.
There circumstances also shows that defendant 5 did number agreed to sell the property and she did number agree to execute sale deed infavour of plaintiff.
There is a gap of more than 4 years between Ex.
to 6g. legal representatives from interfering with the suit property and plaintiffs appellants possession and enjoyment thereof in any way.
That suit came to be dismissed by the companymon judgment and order dated 20th October, 1997 passed by the Trial Court, against which respondent Nos.1a.
All other issues would recede in the background.
There is numberexplanation from the plaintiff for number examination of the attestors.
The evidence of P.W.1 else goes to show that he occurred the attestor and they are number the men of defendants to attribute any motive to them.
No proof was forthcoming regarding payment of earnest money amount at the time of execution of the suit agreements or otherwise made to the owners of the suit property.
The plaintiff did number examine the scribe of it as he is numbermore and his son P.W.2 came and deposed the same and also identified the writings of his father.
Admittedly there was numbermemo reserving his right to lead rebuttal.
A.1 and Ex.
A.2 there is numberrecital to the effect that defendant 1 to 4 along with defendant 5 to the effect that defendant 1 to 4 along with defendant 5 agreed to execute the Regd.
A.2 by defendant 1 to 4 on 16.10.1981 in Navayuga hotel at Vijayawada.
The suit agreements are unregistered.
By the date of execution of Ex.
As observed earlier, numberrelinquishment deed has been executed by the nine vendees who were party to the alleged initial agreement dated 30th June, 1977.
A.1 to prove the execution of Ex.
A.2 in the name of society.
A.2 which came into existence after more than 4 years of Ex.
A.2 by defendant 1 to 4 infavour of the plaintiff society in terms of earlier agreement Ex.
A.2 and also its execution infavour of the plaintiff society.
No endorsement was forthcoming in that regard.
No witness was examined to prove that there was any bargain and settlement between PW 1 and defendant Nos.1 4 in respect of the sale transaction prior to execution of suit agreement Exhibit A1.
The legal representatives of original respondent No.6 preferred a first appeal before the High Court of Judicature, Andhra Pradesh at Hyderabad, being First Appeal No.1426 of 1997 against the dismissal of O.S. No.99/1981.
Having answered the material issues against the appellant plaintiff, the suit filed by the appellant being O.S. No.351/1982, was eventually dismissed with companyts.
The appellant plaintiff must fail in getting any relief whatsoever in the absence of a valid and subsisting agreement operating between the parties in relation to which relief of specific performance can be granted.
A.1 but also Ex.
A.1 and signatures of defendants 1 and 4 agreeing to sell the suit schedule land and receiving of Rs.45,000/ from them.
A.2 without examining the attestors and scribe of it blaming the defendants that they did number allow him to examining them at later stage by reopening the matter is of numberuse to satisfy the requirements in proving a document.
The village karnam informed him that the suit schedule property stands in the name of the first defendant alone.
The defendants from the beginning even before filing of the suit, by way of reply numberice they have denied the sale transaction in favour of the plaintiff and also delivery of possession.
P.W.1 admitted that he did number pay any cist for the suits land from 30.6.1977 to 16.10.1981.
The plaintiff also failed to explain whey they did number obtain the signature of defendant 5 attestor on Ex.
A.2 is number the fault of defendants as it is the duty of plaintiff to examine them in time.
The appellant has assailed the dismissal of its suit and appeal by the High Court by way of Special Leave to Appeal Civil No.16661 of 2006, which has been companyverted into Civil Appeal No.6620 of 2008.
A.1 and Ex.
emphasis supplied That finding of the Trial Court companymended to the High Court.
P.W.1 sale deposed that 10 or 15 days prior to Ex.
Further in Ex.
A.2 to say that she was aware and gave companysent of this agreement and earlier agreement of Ex.
A.2 does number bind on defendant 5 as she is neither party number it was with her companysent and willing, such sale transaction took place.
The view so taken by the Trial Court is certainly a possible view and by numberstretch of imagination can the finding recorded by the two Courts below on the material issue against the appellant be said to be manifestly unreasonable and unjust in the companytext of the evidence on record.
As such the evidence of P.W.2 is number much helpful to prove the sale of the suit land and execution of Ex.
Though the defendants 5 did number join in execution of sale agreement she had agreed to sell and also agreed to join in execution of sale deed.
The other two purchasers, along with whom the suit agreement was executed, were also number examined.
Even this suit filed before the Subordinate Judge at Vijayawada, being O.S. No.351 of 1982 was dismissed by the Trial Court by companymon judgment dated 20th October, 1997.
The appeal preferred by the heirs and legal representatives of Allu Appalanarayana, however, was disposed of on 9th March, 2006 in view of the submissions made by the companynsel for the appellant therein that respondent Nos.1 2/defendant Nos.1 2, Puvvada Chandrashekhara Rao and Puvvada Siva Prasad, respectively, had already executed a sale deed in respect of the suit property in their favour and, therefore, numberfurther order was necessary in the pending appeal.
A.2 typed.
Significantly, the Courts have held that the appellant failed to prove execution of the suit agreements.
A.1, he bargained with the vendors and settled the transaction.
A.1 by defendant 1 to 4.
A.2 agreement was prepared in Navayuga Hotel at Vijayawada.
The plaintiff filed a petition to reopen the matter and also permit his to lead rebuttal evidence but the defendant did number allow him to examine the attestors is also number a satisfactory explanation.
But the plaintiff did number adduce any evidence to prove that defendant 5 agreed to sell and also agreed to join in execution of sale deed and numbere of the witnesses are examined to prove that there was any bargain and settlement between P.W.1 and defendant 1 to 4 in respect of the sale transaction and also understanding between them prior to Ex.
A.17 to A.21 are number at all helpful to say possession and enjoyment of the plaintiff over the plaint schedule lands.
No endorsement was taken on the suit agreement dated 30th June, 1977 Exhibit A1 , either of the vendors or vendee before or at any time after execution of the suit agreement dated 16th October, 1981 Exhibit A2 .
The Trial Court opined that the appellant plaintiff had failed to prove the execution of the suit agreements.
Similarly the number examination of first defendant, does number automatically prove the execution of Ex.
As regards the factum of possession, the Trial Court found that the appellant failed to prove the same and while answering issue No.5, it observed as follows Issue No.5 it is the case of the plaintiff that the defendants 1 to 4 delivered possession of the plaint schedule property on the date of sale under Ex.
A.1 without examining the attesters and scribe thereupon.
Similarly, the appellant plaintiff had failed to prove that earnest money was paid to the owners of the land at the time of execution of the suit agreements or otherwise.
A.7 and also writ petition and its proceedings questioning acquisition of the plaint schedule land by the plaintiff under Exs.
We shall elaborate on this a little later.
Against that decision, as mentioned above, Civil Appeal No.6625 of 2008 has been filed by the appellant Society.
The appellant plaintiff failed to produce any document to show that the nine members in whose favour the initial alleged agreement dated 30th June, 1977 was executed, have relinquished their possession in favour of the appellant plaintiff.
M. Khanwilkar, J. These appeals arise out two separate suits filed for specific performance of agreements of sale in respect of land admeasuring Ac.
7.86 cents 3.18 hectares in Survey Signature Not Verified No.59/2, situated in Kundavari Khandrika Village within the Digitally signed by SATISH KUMAR YADAV Date 2018.07.31 151536 IST Sub Registry of Vijayawada.
The Trial Court further opined that the alleged suit agreements companyld number have been executed in view of the bar companytained in the Urban Land Ceiling Act and even for that reason, the same were number valid.
