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Judgment
Samudrala Govindarajulu, J.—The plaintiff who succeeded in the trial Court and who lost in the lower appellate Court is the appellant in this second appeal. The plaintiff is sister of the defendants 1 to 3/respondents 1 to 3. She filed the suit in the trial Court for specific performance of Ex. A.1 agreement for sale dated 26.08.1987 said to have been executed by the defendants 1 to 3 in her favour for the plaint schedule items of land after receiving entire consideration thereunder and delivered possession of the lands thereunder. After exchange of notices as per Exs. A.2 and A.3, the plaintiff filed the suit. The defendants denied Ex. A.1 agreement for sale and also pleaded that Ex. A.1 might have been fabricated by the plaintiff. In effect, they denied the entire transaction covered by Ex. A.1. This second appeal was admitted on 08.09.2000 in view of substantial questions of law framed in the grounds of appeal, which are as follows:
a) whether the findings of the first appellate Court are justified in holding that the defendants got partitioned their properties in the absence of any cogent evidence?
b) whether the 1st appellate Court is justified in holding that the defendants are not having any right in the property and Ex. A.1 cannot be enforced?
c) whether the 1st appellate Court is correct in misinterpreting Section 17 of Specific Relief Act?
d) whether the 1st appellate is justified by dismissing the suit against 1st defendant inspite of holding that he is having a right over the said property?
e) whether the 1st appellate Court is correct in interpreting clause (a) of Section 17 of the Specific Relief Act?
f) If any one of the pleadings in the plaint is not proved can a court reject the entire pleadings?
g) whether the appellate Court is right in reversing the well considered judgment of the trial Court which decree the suit for specific performance basing on cogent reasons and findings after due consideration of the evidence adduced by the parties and as per the law.
h) whether the appellate Court is right in giving findings in favour of the defendants merely on the basis of surmises presumptions and assumptions without having any proper documentary or oral evidence to support their case.
i) the court below have totally mislead the evidence and gave findings on perverse reasoning the other grounds will be urged at the time of hearing.
After hearing the appellant''s counsel, this Court formulated the substantial question of law as follows:
Whether the plaintiff can be refused specific performance of Ex. A.1 agreement when the lower appellate Court found the same to be true and correct; but on the ground that possession was not delivered thereunder and the defendants 2 and 3 has no title to the suit properties?
After receipt of notices in this second appeal, the defendants 1 and 2/respondents 1 and 2 did not choose to appear before this Court through any counsel or by themselves. The second appeal was dismissed against the 3rd defendant/3rd respondent for default, perhaps for non-payment of bata to him. Absence of the 3rd defendant/3rd respondent before this Court in this second appeal and dismissal of the second appeal as against the 3rd respondent has no effect on this second appeal because as per finding of the lower appellate Court, the 3rd appellant has no title to the schedule property as the suit property was allotted to the share of the 1st defendant entirely in the family partition. Therefore, presence or absence of the 3rd respondent in this appeal matters little.
Both the Courts below repelled contentions of the defendants on truth of Ex. A.1 agreement. The lower appellate Court after considering evidence of PWs 1 and 2 and Ex. A.1 came to the conclusion that Ex. A.1 is true and it contains thumb impressions/signatures of the defendants 1 to 3. The lower appellate Court further found that there were no differences between the parties who are brothers and sister and there was no occasion for the parties to keep signed papers or papers containing thumb impressions of the defendants with the plaintiff. The lower appellate Court ruled out any fabrication of the suit agreement Ex. A.1 on any stamp papers containing thumb impressions and signatures of the defendants 1 to 3.
The lower appellate Court found that the plaintiff was not put in possession of the suit property. The suit property consisted of 8 items of land in Kindam Agraharam of Bondapalli village in Gajapathinagaram Mandal, Vizianagaram District. The lower appellate Court also found that all the defendants 1 to 3 have no title to the suit lands and it was the 1st defendant alone who has right and title to the suit land in view of partition among them in which the suit property was allotted to the share of the 1st defendant. The 1st defendant is also one of the executants of Ex. A.1 agreement for sale. Placing reliance on Section 17(1)(a) of the Specific Relief Act, 1963, the lower appellate Court non-suited the plaintiff as she was aware of all the defendants not having title to the suit lands. Section 17(1)(a) of the said Act reads as follows:
Contract to sell or let property by one who has no title, not specifically enforceable:-
(1) A contract to sell or let any immoveable property cannot be specifically enforced in favour of a vendor or loss-
(a) who knowing himself not to have any title to the property, has contracted to sell or let the property.
The lower appellate Court totally misapplied Section 17(1)(a) of the said Act to a case of this nature. Section 17(1)(a) bars specific performance of a contract in favour of a vendor/seller in case the contract to sell immovable property executed by a seller/vendor who has no title to the property. Section 17(1)(a) can be used only as against a vendor/seller and not as against a purchaser/vendee. Section 17(1)(a) of the Act was introduced to prevent misuse of the provisions of the Specific Relief Act by an unscrupulous vendor who knowingly enters into a contract with third party inspite of he having no title to the land or immovable property which is proposed to be sold under the suit agreement. The lower appellate Court totally erred in law in tabling Section 17(1)(a) of the Act against the plaintiff who is a purchaser under Ex. A.1 suit contract. It may be further seen that even as per finding of the lower appellate Court, the 1st defendant who is one of the vendors under Ex. A.1 has got title to the property as it was allotted to his share in the partition with his brothers who are defendants 2 and 3. The 1st defendant is a party to the suit. The plaintiff might have obtained Ex. A.1 agreement for sale from all the brothers in order to obviate any possible future litigation with all the brothers who were jointly entitled for the suit property prior to the partition. It is nobody''s case that suit property belongs to any third party than the defendants. The lower appellate Court failed to note that in a suit for specific performance of an agreement for sale between the parties, there is no guarantee or warranty of sale of the vendors, by virtue of decree to be passed by a Court on the basis of such an agreement. What rights the vendors had at the time of the suit agreement or in future, will only pass on to the purchaser and nothing more. If the vendors have no right in the property being sold under the suit agreement for sale, then the plaintiff/purchaser will not get any rights in the suit property inspite of decree for specific performance of such an agreement and inspite of execution of registered sale deed either by the defendants themselves or by the Court on their behalf. The lower appellate Court, in my view did not understand the scope of a decree for specific performance.
Simply because the plaintiff did not file tax receipts/cist receipts for the suit lands, the lower appellate Court could not have jumped to the conclusion that no delivery of property took place under Ex. A.1 suit agreement. It is not as if the defendants filed any such land revenue receipts for the suit lands subsequent to the period of Ex. A.1 agreement. In these circumstances, I find on the substantial question of law framed by this Court that the lower appellate Court totally erred in non-suiting the plaintiff after having upheld truth of Ex. A.1 agreement for sale and on flimsy grounds of all the defendants not having title to the suit property and the plaintiff has failed to prove delivery of possession under the suit agreement. In the circumstances, the second appeal deserves to be allowed. In the result, the second appeal is allowed setting aside decree passed by the lower appellate Court and confirming decree of the trial Court. The plaintiff/appellant is entitled for specific performance of Ex. A.1 agreement from the defendants 1 and 2 and all other consequential reliefs. No costs.