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Judgment
M. Satyanarayana Murthy, J.—All these appeals arose out of common judgment dated 22.06.1992, passed in Original Suit Nos. 40 and 53 of 1985, 88, 93 and 94 of 1990, 15, 16, 17, 18 and 19 of 1991, on the file of Subordinate Judge (Now Senior Civil Judge and hereinafter will be referred as trial Court), Ramachandrapuram, East Godavari District. The trial Court clubbed all the suits and recorded evidence in Original Suit No. 40 of 1985.
For the sake of convenience, the parties in all these appeals will hereinafter be referred as arrayed before the trial Court in O.S. No. 40 of 1985.
During pendency of Appeal Suit No. 1137 of 1994, 3rd appellant died and his legal representatives i.e., appellants 17 to 19 are brought on record as per orders of this Court in A.S.M.P. No. 14238 of 1994 on 27.03.2008, 5th appellant died and his legal representatives i.e., appellants 13 to 16 are brought on record as per orders of this Court in A.S.M.P. No. 9272 of 2000 on 16.06.2000, 8th appellant died and his legal representatives i.e., appellants 11 and 12 are brought on record as per orders of this Court in A.S.M.P. No. 22851 of 1999 on 18.11.1999.
During pendency of Appeal Suit No. 419 of 1995, 4th respondent died and his legal representatives i.e., respondents 14 and 15 are brought on record as per orders of this Court in A.S.M.P. No. 7589 of 1999 on 01.04.1999, 9th respondent died and his legal representatives i.e., respondents 16 to 18 are brought on record as per orders of this Court in A.S.M.P. No. 22874 of 2003 on 15.03.2014.
During pendency of Transfer Appeal Suit No. 599 of 1997, the appellant died and his legal representatives i.e., appellants 2 to 4 are brought on record as per orders of this Court in A.S.M.P. No. 677 of 2012 on 22.03.2012.
During pendency of Transfer Appeal Suit No. 129 of 1998, the appellant died and his legal representatives i.e., appellants 2 and 3 are brought on record as per orders of this Court in A.S.M.P. No. 2383 of 2008 on 10.11.2008.
The plaintiff, Ravipati Ananthalakshmi Satyavathi @ Anantha Lakshmi Satyavathi Devi, filed a suit in O.S. No. 40 of 1985 against the defendants for recovery of possession of the plaint schedule property by ejecting the defendants therein and to award a sum of Rs. 44,000/- towards profits or damages for use and occupation or by way of compensation for use of the plaint schedule land for 2nd crop of 1982-83, 2 crops of 1983-84 and 1984-85 and for costs of the suit, on the ground that the agreements between the plaintiff and the purchasers were terminated.
The details of the plaintiffs, who filed the remaining suits, names of corresponding defendants and the reliefs claimed in those suits is depicted in the following tabular form, for better appreciation:
The plaintiff in O.S. No. 53 of 1985 is the 3rd defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 88 of 1990 is the 7th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 93 of 1990 is the 13th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 94 of 1990 is the 8th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 15 of 1991 is the 4th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 16 of 1991 is the 5th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 17 of 1991 is the 6th defendant in O.S. No. 40 of 1985; the plaintiff in O.S. No. 18 of 1991 is the 9th defendant in O.S. No. 40 of 1985 and the plaintiff in O.S. No. 19 of 1991 is the 2nd defendant in O.S. No. 40 of 1985.
Names of the appellants and the corresponding appeals preferred against the suits is depicted in the following tabular form:
Ravipati Anantha Lakshmi Satyavathi @ Anantha Lakshmi Satyavati Devi filed a suit in O.S. No. 40 of 1985, before the trial Court, claiming recovery of possession of property terminating the agreements of sale allegedly executed by her in favour of defendants 1 to 3, contending that she is the owner of an extent of Ac.6.95 cents at Kurakallapalle village shown in the plaint schedule. 1st defendant negotiated with the plaintiff''s husband, purchased the said extent for Rs. 89,000/-. However, the 1st defendant herein obtained 2 agreements of sale from the plaintiff, one for Rs. 45,000/- in his name and another for Rs. 44,000/- in the name of 2nd and 3rd defendants, according to his convenience on 05.06.1980. The plaintiff received an advance sale consideration of Rs. 5,000/- each, under each agreement of sale, delivered vacant possession of the schedule property to the 1st defendant. As there is internal understanding between defendants 1 to 11, defendants 1 to 11 divided the total extent of Ac.6.95 cents into plots, cultivating the same, since the date of their purchase under the agreements of sale.
As per the terms of agreements of sale, defendants have to pay balance of sale consideration of Rs. 39,000/-, deducting Rs. 14,000/-, within 3 months, and obtain registered sale deeds after finalization of land ceiling proceedings, pending against the plaintiff''s husband, by paying the withheld amount of Rs. 14,000/-. However, defendants 1 to 3 paid only Rs. 32,000/- in total and cultivating the plaint schedule land without complying the terms and conditions of agreements of sale.
As the defendants 1 to 3 failed to comply terms and conditions of agreements of sale, the plaintiff got issued a legal notice, dated 18.05.1985, to the defendants 1, 2 and 4 to 11: informing that the time is essence of the contract and demanded to pay balance of sale consideration, as agreed under the legal notice marked as Ex. A-1, while retaining Rs. 14,000/-, within a week from the date of receipt of notice with a threat to terminate the agreements of sale and threatened to recover vacant possession of the schedule property; so also profits for 6 years at the rate of 20 kata bags of paddy for the first crop and 15 kata bags of paddy for 2nd crop. On receipt of the notice, the defendants got issued a reply dated 28.05.1985, marked as Ex. A-2, with false allegations without complying the legitimate demand of plaintiff. Thereupon, the plaintiff terminated agreements of sale. Hence, the plaintiff is entitled to recover vacant possession of the schedule property from all the defendants, who are in unlawful possession, by the date of filing suit. In view of termination of agreements of sale executed in favour of defendants 1, 2 and 3, as the defendants are in unlawful possession, they are liable to pay mesne profits to the plaintiff.
Thereafter, the plaintiff amended plaint raising a specific plea that the defendants issued reply notice dated 28.05.1985 alleging that one agreement was obtained in the name of 1st defendant and the other in the names of 2nd and 3rd defendants. Since the plaintiff did not obtain copies of the agreements, she did not remember in whose name those agreements were obtained. The 2nd defendant, Palepu Suramma, wife of Ramarao, who received the notice did not deny that the agreement was taken in her name, but contended that the 2nd agreement was obtained in the name of Palepu Suramma, wife of Satyanarayana Murthy. Thus, the 11th defendant, who is the husband of 2nd defendant, also did not bring the said fact to the notice of the parties. Palepu Suramma, W/o. Satyanarayana Murthy filed O.S. No. 205 of 1985 on the file of Principal District Munsif Court, and on transfer it was renumbered as O.S. No. 19 of 1991 on the file of Subordinate Judge''s Court, Ramachandrapuram. It also came to light that one P. Venkata Surya Subba Rao filed an application to bring the legal heirs in O.S. No. 205 of 1985, but 2nd defendant is still alive and P. Venkata Surya Subba Rao is not the legal heir. However, one Ketha Lakshmi, 13th defendant herein is impleaded as plaintiff in O.S. No. 203 of 1985, on the file of Principal District Munsif Court, Ramachandrapuram, by then it is renumbered as O.S. No. 93 of 1990 on the file of Subordinate Judge''s Court, Ramachandrapuram. Therefore, the plaintiff claimed the reliefs stated above against all the defendants.
The 1st defendant in O.S. No. 40 of 1985 filed written statement admitting about obtaining of agreements of sale, dated 05.06.1980, referred in the plaint contending that the plaintiffs husband filed a declaration before the Land Reforms Tribunal at Rajahmundry in L.C.C. No. 47 of 1975 and the schedule property is also shown in the name of his wife. As the land ceiling case is not yet finalized even after 6 years, the plaintiff''s husband wanted to dispose of the schedule property of an extent Ac.6.95 cents belonging to the plaintiff so as to purchase a house at Ramachandrapuram. Therefore, the 1st defendant informed the same to the villagers of Kurakallapalle and defendants 1 to 11 came forward to purchase the same, and on the request of the other defendants, the 1st defendant settled the bargain in the presence of P. Subba Rao for a consolidated amount of Rs. 89,000/-, obtained two sale agreements on 05.06.1980, receiving advance of Rs. 10,000/-.
The 1st defendant further admitted that the balance of sale consideration shall be paid in installments, while retaining Rs. 14,000/- with the purchasers, which is agreed to be paid with interest at the time of execution of registered sale deeds. But, execution of registered sale deeds was postponed to future date i.e., for production of final order of land ceiling case of plaintiff''s husband.
The 1st defendant further admitted the possession of the property so delivered after taking the measurements and later, the land purchased under 2 agreements was divided into plots and the respective purchasers cultivating the same since June 1980 raising paddy crop. After delivery of possession of schedule property, a total sum of Rs. 22,000/- was paid to the plaintiff on 04.08.1980, and payment of Rs. 17,500/- was endorsed on the agreement of sale for Rs. 45,000/- and Rs. 4,500/- was endorsed on the agreement of sale for Rs. 44,000/-, those endorsements were duly signed by the plaintiff. On 30.08.1980, an amount of Rs. 8,000/- was paid and Rs. 6,000/- was paid to the plaintiff''s husband through son of the 1st defendant and the same was acknowledged by the plaintiff''s husband. On 18.12.1980, the 1st defendant paid Rs. 23,000/- to the plaintiff obtained a chit. Later, on 15.03.1981, through the son of the 1st defendant, an amount of Rs. 5,000/- was paid to the plaintiff. Thus, by 15.03.1981 a total sum of Rs. 74,000/- was paid out of the sale consideration of Rs. 89,000/-. As per the terms of agreements of sale, Rs. 14,000/- is to be retained with the purchasers, which is agreed to be paid at the time of obtaining registered sale deeds together with interest, after clearance of land ceiling proceedings. In view of confidence on the plaintiff, the 1st defendant never insisted her for endorsement of various payments on the agreements of sale. On 28.04.1981, balance of Rs. 15,000/- was paid by the 1st defendant in the presence of 11th and 12th defendants, but the same was not endorsed due to non availability of the agreements of sale. At the request of the 1st defendant, the plaintiff passed a consolidated receipt acknowledging the payments referred above.
Later, when the 1st defendant started enquiring about the land ceiling proceedings, plaintiff promised to execute registered sale deeds soon after clearance of land ceiling proceedings. When the plaintiff issued a notice, a proper reply was got issued narrating the facts. Thus, in view of the above circumstances, this defendant is always ready and willing to perform his part of contract and finally prayed to dismiss the suit.
The 3rd defendant Pampana Sesharatnam filed written statement admitting about obtaining an agreement of sale and receipt of notice etc., The specific contention of 3rd defendant is that she is in possession and enjoyment of Plots ''C and ''D'' of the plaint schedule, attached to the written statement of 6th defendant, filed long prior to amendment of plaint. Her husband''s name was wrongly noted as Nagabhushanam, though she is the wife of Pattabhiramayya. She further contended that she filed O.S. No. 53 of 1985 for specific performance of agreement of sale and finally prayed to dismiss the suit against her.
The 6th defendant Pampana Nagabhushanam filed written statement contending that the suit is speculative in nature. Taking advantage of non execution of registered sale deed in favour of defendants 2 to 9 and one Ketha Lakshmi, D/o. Surampudi Ramanna, plaintiff resorted to chance litigation.
The plaintiff offered the" Schedule property for sale in 1980, by that time the land ceiling proceedings were pending. 6th defendant and other defendants approached the 1st defendant and requested him to settle the bargain. Accordingly, the bargain was settled and obtained 2 agreements of sale, one for Rs. 45,000/- in favour of 1st defendant and another for Rs. 44,000/- in favour of defendants 2 and 3 for the benefit of defendants 2 to 9 and Ketha Lakshmi, D/o. Surampudi Ramanna and executed separate agreements.
The 6th defendant reiterated the specific contentions raised by 1st defendant regarding payments. Therefore, to avoid repetition of facts, I feel that specific plea regarding payments of balance amount need to be avoided. The 6th defendant further contended that he himself along with other intending purchasers are in possession of separate plots cultivating the schedule property raising paddy crop. The plaintiff out of greediness got issued a legal notice dated 18.05.1985 with false allegations, which is promptly replied. Finally, it is contended that though defendants 1 to 3 are real purchasers, the suit was filed against defendants 2 to 9 and Ketha Lakshmi, who are in possession of separate plots and, consequently a single suit for recovery of possession is not maintainable and the 6th defendant further contended that he filed a suit for specific performance of agreement of sale, in respect of plot of land which is in his possession and it is pending, finally prayed to dismiss the suit.
Defendants 2 to 5 and 7 to 10 filed a memo adopting the written statement filed by 6th defendant.
11th defendant filed written statement almost reiterating the specific contentions raised by 6th defendant contending that, at the request of the plaintiff, he scribed the agreements of sale and the endorsements thereon, so also consolidated receipt and prayed to dismiss the suit.
12th defendant, who was impleaded subsequent to filing of suit, as per orders in I.A. No. 693 of 1983, filed separate written statement specifically contending that she is the only daughter of Palepu Suramma, 2nd defendant. However, the advocate filed vakalath on behalf of defendants 2 to 9 (including the 2nd defendant Palepu Suramma, W/o. Satyanarayanamurthy). Palepu Suramma already filed O.S. No. 209 of 1985 on the file of Principal District Munsif Court, which is renumbered as O.S. No. 19 of 1991 on the file of Subordinate Judge''s Court, Ramachandrapuram. She further admitted that Palepu Suramma, W/o. Satyanarayana Murthy is one of the agreement holders dated 05.06.1980 executed by plaintiff. It is further contended that the plaintiff received entire balance of sale consideration and she is not competent to terminate the agreements of sale and prayed to dismiss the suit against her.
13th defendant, Ketha Lakshmi, filed written statement in similar lines with that of 12th defendant contending that she is in possession of plot ''P'' in an extent of Ac.0.18 cents and filed the suit in O.S. No. 203 of 1985 on the file of Principal District Munsif Court, Ramachandrapuram.
11th defendant filed additional written statement, after amendment of the plaint, contending that husband of the 2nd defendant and the 11th defendant are brothers and his wife is Surya Lakshmi Kantham and not Suramma.
6th defendant also filed additional written statement, wherein he just denied various allegations made in Para 5(a) to (h) of the attached plaint.
Defendants 4, 5, 7 to 10 filed a memo adopting the additional written statement filed by 12th defendant. 1st defendant also filed a memo adopting the additional written statements of 6th defendant and defendants 11 to 13.
The plaintiff filed rejoinder denying the death of Palepu Suramma, 2nd defendant is the wife of 11th defendant and she is alive, she received summons got filed a vakalath. However, as an afterthought, she invented a theory that Palepu Ramarao''s wife is Suryalakshmikantham and Palepu Suramma''s husband is Satyanarayana and that wife of Palepu Ramarao is known as Suramma. Thereby, the question of impleading the legal heirs of Palepu Suramma does not arise, as she is alive.
12th defendant was impleaded as per orders of the Court. Mother of the 12th defendant is not the 2nd defendant and as such, mother of 12th defendant was not an agreement holder. 12th defendant herself came on record in O.S. No. 19 of 1991 by playing mischief.
Basing on the above pleadings, the trial Court framed the following issues, including one additional issue in O.S. No. 40 of 1985:
Whether the defendants have paid the sale consideration as mentioned in their written statement?
Whether the defendants have lost the right to claim specific performance against the plaintiff?
Whether the single suit for recovery of land from two different sale agreement holders for different plots is not maintainable?
Whether the plaintiff has no cause of action to file the suit?
Whether the plaintiff has a right to claim recovery of possession from the defendants without a declaration?
Whether the plaintiff has got a right to appropriate the alleged amount paid to her in the circumstances?
Whether the plaintiff is entitled to any amount by way of use and occupation by defendants?
To what relief?
The case of the plaintiff in O.S. No. 53 of 1985, who is 3rd defendant in O.S. No. 40 of 1985, who is a joint promisee under Exs. B-3 along with the 2nd defendant, is that the 1st defendant, plaintiff in O.S. No. 40 of 1985, intended to sell Ac.6.95 cents of plaint schedule land to invest the sale proceeds for beneficial purpose; the plaintiff herein and some other defendants agreed to purchase a portion of the land depending upon their financial capacity; the 1st defendant settled the price for total extent at Rs. 89,000/-. Even though a land ceiling case is pending with regard to the suit schedule land, 2nd defendant in this suit, obtained two agreements of sale from the plaintiff in O.S. No. 40 of 1985, on 05.06.1980, one for Rs. 45,000/- in his name for an extent of Ac.3.45 cents in R.S. No. 82 and 85/82 and another for Rs. 44,000/- in the name of plaintiff in this suit and one Palepu Suramma for an extent of Ac.3.50 cents in Survey No. 82 for the benefit of the plaintiff in this suit and some other defendants; paid advance sale consideration of Rs. 10,000/- under 2 agreements of sale. As per the terms of agreements, the agreement holders (defendants) agreed to pay entire sale consideration, excluding Rs. 14,000/-, within three months, and obtain registered sale deeds after finalization of land ceiling proceedings pending in favour of the plaintiff''s husband, and to pay thereafter the withheld amount of Rs. 14,000/-. On 04.08.1980, an amount of Rs. 22,000/- was paid to the plaintiff; Rs. 17,500/- was endorsed on the agreement of sale executed for Rs. 45,000/- and Rs. 4,500/- was endorsed on the agreement of sale executed for Rs. 44,000/- by the plaintiff. Subsequently, the agreement holders (defendants) were permitted to take measurements of the land and divide the same into plots and after taking measurements, the entire schedule property was divided into plots and the same is being enjoyed by the respective agreement holders. Thus, the plaintiff received total sale consideration of Rs. 89,000/-, on payment of Rs. 15,000/- finally on 28.04.1981 issued a consolidated receipt. Thus, the 3rd defendant is in possession and enjoyment of Ac.2.00 cents of land and paid entire sale consideration, sought for the relief of specific performance.
The 1st defendant herein i.e., plaintiff in O.S. No. 40 of 1985, filed written statement admitting execution of agreements of sale; one in favour of 2nd defendant herein and another in favour of Surampudi Suramma at their convenience on 05.06.1980; so also receipt of advance of Rs. 10,000/- under the agreements of sale, delivering possession of the property to the purchasers under the agreements of sale.
The 1st defendant, plaintiff in O.S. No. 40 of 1985, later came to know about the internal arrangement between the 3rd defendant and 10 others, dividing the property into plots and cultivating the same. The main contention of the 1st defendant, plaintiff in O.S. No. 40 of 1985, is that there is no privity of contract between the 1st defendant i.e., plaintiff and others who are not parties to the agreements of sale, thereby the persons who are in occupation and not parties to the agreements of sale are not entitled to claim any relief against the 1st defendant, plaintiff in O.S. No. 40 of 1985.
It is further contended that as per the terms of agreements of sale, 2nd defendant herein has to pay balance of sale consideration, except Rs. 14,000/, within 3 months, and obtain registered sale deeds on production of land ceiling clearance certificate by the husband of plaintiff, by paying the withheld amount of Rs. 14,000/- but the defendants paid only Rs. 22,000/-, squatting on the plaint schedule land in O.S. No. 40 of 1985.
Despite the demands made by the 1st defendant, plaintiff in O.S. No. 40 of 1985, the remaining defendants did not perform their part of obligation under the agreements of sale, she got issued a legal notice dated 18.05.1985, making time as essence of the contract demanding to pay balance of sale consideration except Rs. 14,000/-, as agreed under the agreements of sale, with a threat to terminate the agreements of sale. For which a reply was issued by the plaintiff in this Suit and other defendants with false allegations, wherein there was no whisper about issuance of any consolidated receipt, marked as Ex. B-6, and thereby the consolidated receipt is invented for the purpose of this suit. Consequently, the plaintiff in this suit and other defendants in O.S. No. 40 of 1985 are not entitled to claim the relief of specific performance of agreements of sale.
The main contention of the 1st defendant, plaintiff in O.S. No. 40 of 1985, is that the agreements of sale are not enforceable under law as they are against the public policy and vitiated by illegality. At the same time, the consolidated receipt, marked as Ex. B-6, is forged one and thereby the plaintiff in this suit and other defendants in O.S. No. 40 of 1985 did not approach the Court with clean hands, consequently the relief of specific performance cannot be granted and prayed for dismissal of the suit.
The 2nd defendant in this suit filed written statement, contents of which are in line with the plaint allegations in the instant suit, and finally prayed for dismissal of the suit against him.
Basing on the above pleadings, the trial Court framed the following issues:
Whether there is privity of contract between the plaintiff and 1st defendant?
Whether the contract is unenforceable?
Whether the plaintiff is entitled to the specific performance?
To what relief?
* * *
The case of the plaintiff in O.S. No. 88 of 1990, who is 7th defendant in O.S. No. 40 of 1985, is that initially he filed a suit in O.S. No. 202 of 1985 on the file of Principal District Munsif Court, Ramachandrapuram, and later it was made over to the trial Court, renumbered as O.S. No. 88 of 1990 for specific performance of agreement of sale dated 05.06.1980 in an extent of Ac.0.30 cents. The remaining plaint averments in this suit are similar to that of the plaint averments in O.S. No. 53 of 1985.
The 1st defendant, who is the plaintiff in O.S. No. 40 of 1985, filed her written statement in similar line to that of the written statement filed by her in O.S. No. 53 of 1985 and prayed to dismiss the suit.
Basing on the above pleadings, the trial Court framed the following issues:
Whether there is existence of contract of agreement of sale?
Whether the consolidated receipt is rank forgery?
Whether the sale agreements are vitiated by illegality?
Whether the sale is barred by time?
Whether the 1st defendant is entitled to exemplary costs u/s 35-A of C.P.C.?
Whether the 2nd defendant is liable to pay suit costs as he is added as a proforma defendant?
Whether the plaintiff is entitled to the relief of specific performance of contract?
To what relief?
* * *
The case of the plaintiff in O.S. No. 19 of 1991, who is 2nd defendant in O.S. No. 40 of 1985, is that she filed a suit for specific performance of agreement of sale dated 05.06.1980, in an extent of Ac.1.00 cents of land. The remaining plaint averments in this suit are similar to that of the plaint averments in O.S. No. 53 of 1985.
The 1st defendant in this suit, who is plaintiff in O.S. No. 40 of 1985, filed written statement with the same allegations mentioned in written statement filed by her in O.S. No. 40 of 1985. Though in Para 8 of the written statement, it is contended that actually the agreement was taken in favour of Surampudi Suramma, 4th defendant in O.S. No. 40 of 1985, she did not specifically state that she did not execute agreement of sale in favour of Palepu Suramma, plaintiff in O.S. No. 19 of 1991, but raised a contention that she did not execute agreement of sale in favour of Palepu Suramma and Pampana Sesharatnam. After death of Palepu Suramma, Palepu Venkata Surya Subba Rao (12th defendant in O.S. No. 40 of 1985) was impleaded as per orders in I.A. No. 298 of 1987, dated 04.08.1988, but the 1st defendant did not file any additional written statement in this suit.
The 2nd defendant, Surampudi Bapiraju, filed written statement in similar line to that of the written statement filed by him in O.S. No. 53 of 1985.
As the issues framed in this Suit are similar to that of the issues framed in O.S. Nos. 93 and 94 of 1990, 15, 16, 17, 18 and 19 of 1991, I feel that it is not necessary to repeat the same issues in the respective suits.
The case of the plaintiff in O.S. No. 93 of 1990, who is 13th defendant in O.S. No. 40 of 1985, the plaintiff in O.S. No. 94 of 1980, who is 8th defendant in O.S. No. 40 of 1985, the plaintiff in O.S. No. 15 of 1991, who is 4th defendant in O.S. No. 40 of 1985, the plaintiff in O.S. No. 16 of 1991, who is 5th defendant in O.S. No. 40 of 1985, the plaintiff in O.S. No. 17 of 1991, who is 6th defendant in O.S. No. 40 of 1985, the plaintiff in O.S. No. 18 of 1991, who is 9th defendant in O.S. No. 40 of 1985, filed the suits claiming relief of specific performance of agreement of sale for various extents, as mentioned in the table at page No. 3 of the judgment, alleging that on their behalf 1st defendant purchased the schedule property covered by Exs. B-1 and B-3 and they paid advance of sale consideration and balance of sale consideration on different dates, but the plaintiff in O.S. No. 40 of 1985, 1st defendant in this Suit, did not execute registered sale deed receiving balance of sale consideration and sought for relief of specific performance of agreement of sale directing the 1st defendant to execute registered sale deed by receiving balance of sale consideration, in their favour.
The 1st defendant, who is the plaintiff in O.S. No. 40 of 1985, filed her written statement in all the suits admitting execution of agreements of sale in favour of defendants 1, 2 and 3 and resisted the claim on the following grounds:
a) There is no privity of contract between the plaintiff in O.S. No. 40 of 1985 and defendants in the above suits, who are not parties to the agreements of sale, thereby they are in illegal occupation of the schedule property and not entitled to claim relief of specific performance;
b) It is further contended that as per the terms of agreements of sale, 2nd defendant herein has to pay balance of sale consideration, except Rs. 14,000/, within 3 months, and obtain registered sale deeds on production of land ceiling clearance certificate by the husband of plaintiff, by paying the withheld amount of Rs. 14,000/- but the defendants paid only Rs. 22,000/-, squatting on the plaint schedule land in O.S. No. 40 of 1985.
c) Despite the demands made by the 1st defendant, plaintiff in O.S. No. 40 of 1985, the remaining defendants did not perform their part of obligation under the agreements of sale, she got issued a legal notice dated 18.05.1985, making time as essence of the contract demanding to pay balance of sale consideration except Rs. 14,000/-, as agreed under the agreements of sale, with a threat to terminate the agreements of sale, for which a reply was issued by the plaintiff in this Suit and other defendants with false allegations, wherein there was no whisper about issuance of any consolidated receipt, marked as Ex. B-6, and thereby the consolidated receipt is invented for the purpose of this suit. Consequently, the plaintiff in this suit and other defendants in O.S. No. 40 of 1985 are not entitled to claim the relief of specific performance of agreements of sale.
d) The main contention of the 1st defendant, plaintiff in O.S. No. 40 of 1985, is that the agreements of sale are not enforceable under law, as they are against the public policy and vitiated by illegality. At the same time, the consolidated receipt, marked as Ex. B-6, is forged one and thereby the plaintiff in this suit and other defendants in O.S. No. 40 of 1985 did not approach the Court with clean hands, consequently the relief of specific performance cannot be granted and prayed for dismissal of the suit.
The 2nd defendant filed written statement admitting obtaining agreements of sale marked as Exs. B-1 and B-3 on behalf of the defendants, who filed the above suits, dividing the suit schedule property into plots, cultivating the same by the defendants, individually, as claimed by them in the respective plaints. However, he contends that he is not liable to execute registered sale deed and finally prayed to dismiss the suits against him.
Basing on the pleadings in O.S. No. 53 of 1985, the trial Court framed the following issues:
Whether there is privity of contract between the plaintiff and 1st defendant?
Whether the contract is unenforceable?
Whether the plaintiff is entitled to the specific performance?
To what relief?
However, in the other suits O.S. No. 88, 93 and 94 of 1990, 15, 16, 17, 18 and 19 of 1991, the trial Court framed the following issues:
Whether there is existence of contract of agreement of sale?
Whether the consolidated receipt is rank forgery?
Whether the sale agreements are vitiated by illegality?
Whether the sale is barred by time?
Whether the 1st defendant is entitled to exemplary costs u/s 35-A of C.P.C.?
Whether the 2nd defendant is liable to pay suit costs as he is added as a proforma defendant?
Whether the plaintiff is entitled to the relief of specific performance of contract?
To what relief?
During course of trial, all the suits were clubbed together and the evidence was recorded in O.S. No. 40 of 1985. on behalf of the plaintiff, P.W. 1 was examined and Exs. A-1 to A-6 were marked; On behalf of the defendants, D.W. s.1 to 9 were examined and Exs. B-1 to B-19 were marked.
Upon hearing argument of both the counsel the trial Court decreed the suit filed by the plaintiff in O.S. No. 40 of 1985, in part, directing the defendants to redeliver possession of the plaint schedule property to the plaintiff, on condition of paying the amount decreed against her in O.S. Nos. 53 of 1985, 88 and 93 of 1990, 15, 16, 17, 18, 19 and 94 of 1991 with interest at the rate of 12 1/2% p.a. from 28.04.1991 till the date of decree and thereafter at the rate of 6% p.a. It is further ordered therein that the defendants are entitled to half of the amount lying in the deposit of the Court and as such the plaintiff is also entitled to receive the remaining half of the amount.
Accordingly, the suits filed by each of the plaintiff in O.S. Nos. 53 of 1985, 88 and 93 of 1990, 15, 16, 17, 18, 19 and 94 of 1991, for specific performance of agreements of sale dated 05.06.1980, to the extent in their possession in respect of the schedule property, though the trial Court declined to grant the relief of specific performance but decreed the suits with interest at 12 1/2% p.a. from 28.04.1981 till the date of decree and thereafter at the rate of 6% p.a. till the date of realization with further direction to pay share proportionate to cultivation of suit schedule land in respect of each suit, out of half of the amount deposited into Court, with interest accrued thereon, if any. Each of the suit is decreed for payment of the following amount by plaintiff in O.S. No. 40 of 1985 respectively:
Aggrieved by the impugned decree and judgment in O.S. No. 40 of 1985, plaintiff therein preferred Appeal Suit No. 419 of 1995 before this Court challenging the direction issued by the trial Court, on various grounds, for repayment of advance sale consideration received by the plaintiff from the defendants 1 to 3.
Aggrieved by the impugned decree and judgment in O.S. No. 40 of 1985, defendants 1, 3, 4 to 9, 12 and 13 therein preferred Appeal Suit No. 1137 of 1994 before this Court questioning denial of relief of specific performance. Further, the plaintiff in O.S. No. 40 of 1985, aggrieved by the impugned decrees and judgments in O.S. Nos. 53 of 1985, 88, 93 and 94 of 1990, 15, 16, 17, 18 and 19 of 1991, preferred Appeal Suit Nos. 158 of 1992, 115 of 1992, 104 of 1992 and 159 of 1992, 105 of 1992, 116 of 1992, 117 of 1992, 160 of 1992 and 114 of 1992 before the Principal District Judge, East Godavari District at Rajahmundry, which were subsequently made over to I Additional District Judge''s Court, Rajahmundry, for disposal. Accordingly, the plaintiffs in O.S. Nos. 53 of 1985, 88, 93 and 94 of 1990, 15, 16, 17 and 18 of 1991, aggrieved by the impugned decrees and judgments therein preferred Appeal Suit Nos. 120 of 1992, 122 of 1992, 127 of 1992, 126 of 1992, 125 of 1992, 121 of 1992, 118 of 1992, 119 of 1992 before the Principal District Judge, East Godavari District at Rajahmundry, which were subsequently made over to I Additional District Judge''s Court, Rajahmundry, for disposal. At that stage, Appeal Suit Nos. Nos. 158 of 1992, 115 of 1992, 104 of 1992 and 159 of 1992, 105 of 1992, 116 of 1992, 117 of 1992, 160 of 1992 and 114 of 1992, preferred by the plaintiff in O.S. No. 40 of 1985, pending before the I Additional District Judge''s Court, Rajahmundry, were withdrawn and transferred to this Court, vide orders of this Court on 21.08.1998, to be tried along with Appeal Suit No. 419 of 1995. Accordingly, Appeal Suit Nos. 120 of 1992, 122 of 1992, 127 of 1992, 126 of 1992, 125 of 1992, 121 of 1992, 118 of 1992, 119 of 1992, preferred by the respective defendants in O.S. No. 40 of 1985, which were pending before the I Additional District Judge''s Court, Rajahmundry, were withdrawn and transferred to this Court, vide orders of this Court on 09.10.1996, to hear along with Appeal Suit No. 1137 of 1994.
Since the issues involved in all these appeals are one and the same, they are taken up for disposal by way of this common judgment.
Since the contentions raised in all the appeals filed by the plaintiff in O.S. No. 40 of 1985 are similar and identical, to avoid repetition of all those contentions, the following are the important contentions:
a) The trial Court on wrong appreciation of evidence believed the acknowledgment, marked as Ex. B-6, which is highly suspicious and as it is manipulated for the purpose of defence in this suit, but on erroneous appreciation directed the plaintiff to repay entire consideration received by her under two agreements of sale marked as Exs. B-1 and B-3;
b) The trial Court ignored the allegations made in the reply notice dated 28.05.1985, where there was no reference about acknowledgment marked as Ex. B-6; that itself is sufficient to discredit the testimony of witnesses examined for the defendants regarding payment of amount covered by Ex. B-6, but the trial Court ignored the reply notice dated 28.05.1985, on this ground alone Ex. B-6 is to be rejected;
c) The trial Court directed the plaintiff to pay different amount to the defendants though there is no privity of contract between the plaintiff and defendants 4 to 9 and 13, but whatever the amount received is only from defendants 1 to 3 under Exs. B-1 and B-3 and not from the other defendants. Therefore, in the absence of any privity of contract, the plaintiff cannot be compelled to pay any amount to the other defendants and it is an erroneous approach;
d) Comparison of signatures by the trial Court itself is not proper and did not compare the disputed signatures on Ex. B-6 with the admitted signatures on the available documents and that apart, the Court is not an expert to play the role of an expert. Therefore, basing on the opinion arrived by the Court, Ex. B-6 ought to have been rejected, but obviously for different reasons, the trial Court accepted Ex. B-6;
e) The trial Court did not consider the relief claimed by the defendants in the suits filed by them, in proper perspective, and in the absence of any alternative relief for refund of the amount, the trial Court ought not to have ordered for repayment of consideration received from the defendants, but on erroneous appreciation of law ordered for repayment of consideration received from the defendants 1 to 3, together with interest, though not claimed and committed an error;
f) The trial Court also failed to appreciate the contention that defendants are in unlawful possession and thereby not entitled to continue in possession of the property and they are bound to deliver vacant possession.
Finally prayed to allow the Appeal Suit No. 419 of 1995 and Transfer Appeal Suit Nos. 3145, 3147, 3148, 3149 and 3150 of 1999, 958, 959, 960 and 1223 of 2000 setting aside the impugned decrees and common judgment of the trial Court, so far as it relates to repayment of consideration received under two agreements of sale, together with interest, and grant past and future profits payable to the plaintiff -appellant by the persons in possession of the property i.e., defendants while confirming the other part of the decree i.e., for delivery of possession.
Per contra, the defendants 1, 3, 4 to 9, 12 and 13 jointly, preferred Appeal Suit No. 1137 of 1994 on the file of this Court, challenging the impugned decrees and common judgment, directing the plaintiff to recover possession of respective suit schedule lands from them, as ordered by the trial Court in O.S. No. 40 of 1985, on various grounds. Similarly, the respective defendants in O.S. No. 40 of 1985 preferred Transfer Appeal Suit Nos. 309 of 1997, 90 of 1998, 599 of 1997, 308 of 1997, 307 of 1997, 129 of 1998, 473 of 2005, 65 of 1998 mainly challenging denial of relief for specific performance of agreements of sale. Since the contentions raised in A.S. No. 1137 of 1994 and the Transfer Appeal Suits preferred by the respective defendants in O.S. No. 40 of 1985 are similar and identical, to avoid repetition of those contentions, the following are the important contentions:
a) The trial Court having believed execution of agreements of sale marked as Exs. B-1 and B-3 and receipt of sale consideration by the plaintiff, which is evidenced by Ex. B-6, ought not to have ordered for redelivery of possession of the property by the defendants in O.S. No. 40 of 1985, as the defendants are real purchasers of the property in their possession, but on erroneous appreciation negatived the claim of the defendants for specific performance of agreements of sale, while ordering for delivery of vacant possession of the schedule property;
b) The trial Court did not appreciate the evidence, more particularly, regarding conduct of the plaintiff who approached the Court with inconsistent and false pleas regarding execution of Exs. B-1, B-3 and acknowledgment marked as B-6 with an ulterior motive, thereby the plaintiff is disentitled to claim the relief of recovery of possession;
c) The trial Court on wrong appreciation of Section 17 of Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (For short, ''the Land Reforms Act'') concluded that the agreements marked as Exs. B-1 and B-3 are void and not enforceable under law, but the bar u/s 17 is applicable only when those agreements were executed to avoid surrender of land and when it is not the intention, the trial Court ought not to have held that Exs. B-1 and B-3 are void documents, but committed an error;
d) The trial Court on misinterpretation of decision of a learned single judge of this Court in P. Parameshwar Yadav and others v. Government of A.P. Hyderabad and others 1989 (2) ALT 32 concluded that even entering into an agreement of sale amounts to alienation, which is contrary to Section 54 of Transfer of Property Act, 1882 and committed an error in decreeing the suit filed by the plaintiff in O.S. No. 40 of 1985 and dismissing the suits filed by the defendants in O.S. Nos. 53 of 1985, 88 and 93 of 1990, 15, 16, 17, 18, 19 and 94 of 1991 for specific performance of agreements of sale.
Finally prayed to allow the Appeal Suit No. 1137 of 1994, Transfer Appeal Suit Nos. 473 of 2005, 307, 308, 309, 599 of 1997, 65, 90 and 129 of 1998, 599 of 1997, 308 of 1997, 307 of 1997, 129 of 1998, 94 of 1990, 65 of 1998, setting aside the impugned decrees and common judgment passed in O.S. No. 40 of 1985 and O.S. Nos. 88 and 93 of 1990, 15, 16, 17, 18, 19 and 94 of 1991 and 53 of 1995 and grant the relief of specific performance of agreements of sale in respect of the schedule property annexed to the plaint in all the suits.
During course of argument, learned counsel for the plaintiff -appellant mainly contended that the agreements of sale are not enforceable under law for the reason that the alienation by executing agreements of sale is hit by Section 17(1) of A.P. Land Reforms Act and that apart, the agreements are against the public policy, consequently the defendants are not entitled to claim any right under the void documents Exs. B-1 and B-3. It is further contended that even according to the recitals of Exs. B-1 and B-3, the plaintiff was under an obligation to execute registered sale deeds, after termination of land ceiling proceedings before different authorities, under the Land Reforms Act, and yet the land ceiling proceedings are pending, thereby there is no cause of action for the defendants for specific performance of agreements of sale.
It is contended that A.P. Land Reforms Act is an ex-proprietary legislation and the provisions of such Act has to be interpreted only to achieve the object of the legislature in enacting the Act, but the trial Court perhaps under the misconception held that the defendants 1, 2 and 3, paid consideration under void documents, are entitled to recover the amount in view of Section 65 of Indian Contract Act, 1872, though no alternative relief for refund of advance amount or earnest money was claimed, but in view of Section 22 of Specific Relief Act, 1963, unless such refund of advance amount or earnest money is claimed, the Court shall not grant such relief but the trial Court on misinterpretation of the law directed the plaintiff in O.S. No. 40 of 1985 to repay the consideration received under Ex. B-6 and other documents to the defendants for delivery of vacant possession of the land which is a clear error committed by the trial Court. On this ground alone, the direction given by the trial Court for repayment of sale consideration received by the plaintiffs is liable to be set-aside.
The plaintiff at best entered into agreements of sale with defendants 1 to 3 agreeing to execute registered sale deeds on receipt of the balance of sale consideration, in terms of Exs. B-1 and B-3, but the other defendants who occupied various extents of land, dividing the entire property into plots also filed suits for specific performance of agreements of sale, though there is no privity of contract between the plaintiff and defendants 4 to 13. Therefore, the defendants 4 to 9 and 13 are not entitled to claim the relief of specific performance and there is no obligation on the part of the plaintiff to pay any amount to defendants, but the trial Court failed to appreciate the specific contention of the defendants in proper perspective regarding privity of contract between the plaintiff and defendants 4 to 13.
Finally, it is contended that unless defendants 1 to 3 or any other defendants proved that they are always ready and willing to perform their obligation, as required u/s 16(c) of Specific Relief Act, they are disentitled to claim the relief of specific performance, and on the other hand, the relief of specific performance is purely a discretionary one u/s 20 of specific Relief Act, and such discretion has to be exercised with great care and caution. Therefore, the trial Court rightly exercised its discretion in declining to grant the relief of specific performance and the said finding does not call for interference of this Court in the Appeals filed by the defendants.
It is also one of the specific submissions of learned counsel for the plaintiff - appellant that Ex. B-6 is a rank forged document, but the trial Court exercising power u/s 73 of Indian Evidence Act, 1872, compared the disputed signatures with the admitted signatures but did not arrive at a right conclusion. Therefore, the exercise undertaken by the trial Court for comparison is not proper and that apart, the trial Court is not an expert and even otherwise, the opinion of an expert is only relevant u/s 45 of the Evidence Act. But, on erroneous appreciation of facts, the trial Court concluded that Ex. B-6 was executed by the plaintiff. If that is disbelieved, there is no obligation on the part of the plaintiff to repay the sale consideration to any of the defendants and finally prayed to set-aside the direction issued against the plaintiff for repayment of sale consideration and to grant past and future profits, while confirming the impugned decree passed in the suits filed by the defendants for specific performance of agreements of sale.
The learned counsel for the plaintiff - appellant drew the attention of this Court to several decisions with regard to principles of interpretation of exproprietary legislation and enforceability of Ex. B-1 and B-3, which will be referred at appropriate stage.
Whereas, Mr. T.V.S. Prabhakara Rao, learned counsel for the defendants - appellants contended that the defendants 1 to 3 entered into agreements of sale, marked as Exs. B-1 and B-3, on behalf of all the defendants who are in possession of the property. Unless these agreements are cancelled, the possession of the defendants cannot be termed as unlawful or illegal, thereby the plaintiff in O.S. No. 40 of 1985 is not entitled to recover possession of the property during subsistence of agreements of sale, marked as Exs. B-1 and B-3, but the trial Court on wrong appreciation held that the plaintiff is entitled to recover vacant possession of the schedule property. The agreements of sale, marked as Exs. B-1 and B-3, are only subject to finalization of land ceiling proceedings, pending at different stages, against the plaintiff''s husband, and the defendants 1 to 3 agreed to pay, withheld amount of Rs. 14,000/- only on termination of land ceiling proceedings. Therefore, the agreements marked as Exs. B-1 and B-3 are not intended to defeat the very object of A.P. Land Reforms Act, and it is not hit by Section 17(1) of A.P. Land Reforms Act; apart from that the plaintiff in O.S. No. 40 of 1985 did not plead that Exs. B-1 and B-3 are voidable and unenforceable documents. In the absence of any such plea, the trial Court is not supposed to pass a decree in favour of the plaintiff declining to grant the decree for the specific performance in favour of the defendants. It is further contended that the relief of specific performance is purely discretionary u/s 20 of Specific Relief Act and that apart, the defendants have already paid substantial amount as agreed under Exs. B-1 and B-3 except meager amount of Rs. 2,000/- and the same is proved by producing satisfactory and cogent evidence and accepted by the trial Court. However, the plaintiff contended that the acknowledgment marked as Ex. B-6, is a forged document but no amount of evidence is brought on record to prove that it is forged one. When both the parties did not refer the disputed document to handwriting expert, calling for opinion to find out the genuineness of the signatures on Ex. B-6, the Court has no other alternative except to exercise power u/s 73 of Indian Evidence Act. Therefore, the trial Court rightly exercised its power u/s 73 of Indian Evidence Act, and came to an independent conclusion that Ex. B-6 was executed by the plaintiff acknowledging receipt of sale consideration. Thus, when the defendants paid substantial amount under Exs. B-1 and B-3, it indicates their readiness and willingness, but obligation to pay balance arises only on receipt of intimation from the plaintiff about termination of land ceiling proceedings before the concerned authorities. Till then, the defendants are not under an obligation to pay balance of sale consideration, in view of the order of performance as agreed under Exs. B-1 and B-3. Thus, the defendants proved their readiness and willingness to perform their part of obligation under Exs. B-1 and B-3.
No doubt, defendants 4 to 9 and 13 did not enter into the alleged agreements with the plaintiff. However, defendants 1 to 3 entered into the agreements on behalf of defendants 4 to 9 and 13. The recitals of the plaint in O.S. No. 40 of 1985, specific pleas raised in each plaint itself is sufficient to conclude that there is an internal arrangement among the defendants into division of plots, thereby the defendants 4 to 9 and 13 are also entitled to claim the relief of specific performance. Though execution of Exs. B-1 and B-3 is admitted, the trial Court dismissed the suits filed by the defendants, even though no specific plea was raised as contained u/s 20(2) of Specific Relief Act to decline the relief of specific performance. However, the plea of unenforceability of Exs. B-1 and B-3 is not open to the plaintiff, in view of bar u/s 9 of Specific Relief Act, but obviously for different reasons, the trial Court declined the relief of specific performance while granting relief of recovery of possession in favour of the plaintiff erroneously. If the evidence on record is appreciated with reference to law laid down by the Apex Court, the defendants are entitled to decree for specific performance and whereas the plaintiff is disentitled to claim recovery of possession during subsistence of contracts marked as Exs. B-1 and B-3, but the trial Court on erroneous approach dismissed the suits filed by the defendants for specific performance granting decree for recovery of possession in favour of the plaintiff.
The learned counsel for the defendants - appellants placed reliance on a Division Bench decision of this Court in Government of Andhra Pradesh and Others Vs. V. Swarajyalakshmi and Others, and the principles laid down therein will be referred at appropriate stage. Finally, learned counsel for the defendants prayed to set-aside the impugned decrees and common judgment passed in O.S. Nos. 53 of 1985, 88, 93 and 94 of 1990, 15, 16, 17, 18 and 19 of 1991 and pass a decree for specific performance in their favour and set-aside the impugned decree and judgment passed in O.S. No. 40 of 1985 in favour of the plaintiff allowing the Appeals.
Considering rival contentions and perusing the material available on record, the points that arise for consideration in these Appeals are:
1) Whether the agreements of sale marked as Exs. B-1 and B-3 are valid and enforceable under law?
2) Whether the plaintiff in O.S. No. 40 of 1985 is liable to repay Rs. 87,000/-, allegedly received as advance of sale consideration under Exs. B-1 and B-3, in the absence of any claim for refund of sale consideration, in terms of Section 22 of Specific Relief Act, in the suits filed by the defendants for specific performance?
3) Whether there is any privity of contract between the plaintiff and defendants 4 to 9 and 13? If not, are the defendants 4 to 9 and 13 entitled to seek the relief of specific performance against the plaintiff in O.S. No. 40 of 1985?
4) Whether the defendants are in unlawful possession of suit schedule property in O.S. No. 40 of 1985? If not, are they liable to deliver vacant possession of the schedule property to the plaintiff in O.S. No. 40 of 1985?
5) Whether defendants 2 and 3 are entitled to sue for specific performance of sale splitting up Ex. B-3?
6) Whether the defendants 2 and 3, 4 to 9 and 13 are ready and willing to perform their part of obligation in terms of Section 16(c) of Specific Relief Act? If so, are they entitled to claim decree for specific performance of agreements of sale, marked as Exs. B-1 and B-3?
POINT No. 1: Undisputedly the plaintiff executed agreements of sale in favour of defendants 1 to 3 agreeing to sell the schedule property for a total consideration of Rs. 89,000/- and received advance of Rs. 10,000/- under 2 agreements, marked as Exs. B-1 and B-3, while agreeing for the other terms contained therein. There is no dispute regarding execution and terms contained in Exs. B-1 and B-3, but the dispute is only with regard to validity and enforceability of Exs. B-1 and B-3. In view of the admission of execution of Exs. B-1 and B-3 by the plaintiff and filing of a suit in O.S. No. 40 of 1985, only certain defences are available to the plaintiff u/s 9 of Specific Relief Act, to challenge the validity and enforceability of Exs. B-1 and B-3 between the parties to the agreements of sale. In the entire plaint in O.S. No. 40 of 1985 as amended, there is no specific plea that the agreements of sale marked as Exs. B-1 and B-3 are invalid and not enforceable under law except contending that the defendants did not comply the terms and conditions of Ex. A-1 and continuing in possession of the suit schedule land unlawfully. Thus, the validity and enforceability of Exs. B-1 and B-3 was not challenged in the entire plaint in O.S. No. 40 of 1985. The defendants filed various suits for specific performance of agreements of sale basing on Exs. B-1 and B-3. In the said suits, the plaintiff herein being 1st defendant therein raised a specific contention that the agreements of sale marked as Exs. B-1 and B-3 are not enforceable under law and they are void.
In all the suits filed by the defendants, in Paragraphs 6 and 7 of the written statements filed by the 1st defendant, plaintiff O.S. No. 40 of 1985, a specific plea was raised that the suit for specific performance is not maintainable and that the alleged agreements are vitiated by illegality and are against the public policy to the knowledge of other defendants and as such they cannot be enforced.
The trial Court framed 2nd issue in O.S. No. 53 of 1985 regarding enforceability of agreements of sale and in the other suits, 3rd Issue is the relevant issue about legality and enforceability of the agreements of sale marked as Exs. B-1 and B-3. In view of specific pleas raised by the defendants in the suits filed for specific performance, about enforceability and legality of the agreements of sale, the trial Court concluded that the agreements are not enforceable under law, in view of bar u/s 17(1) of A.P. Land Reforms Act. Aggrieved by the said findings, the defendants who filed suits for specific performance preferred various appeals referred in the table herein above. Therefore, it is the duty of this Court, being Court of first appeal, to decide the legality of the findings recorded by the trial Court.
The main contention of learned counsel for the defendants -appellants is that the agreements are void only against the Government and not against third parties. The bar u/s 17(1) of A.P. Land Reforms Act is not applicable to these agreements of sale, marked as Exs. B-1 and B-3, and drawn the attention of this Court to a judgment of this Court in support of his contention. Before adverting to the legal position, I feel that it is appropriate to extract Section 17(1) of A.P. Land Reforms Act, for better appreciation, which is as follows:
"17. Prohibition of alienation of holding:- (1) No person whose holding, and no member of a family unit, the holding of all the members of which in the aggregate, is in excess of the ceiling area as on the 24th January, 1971 or at any time thereafter, shall on or after the notified date, alienate his holding or any part thereof by way of sale, lease, gift exchange, settlement, surrender, usufructuary mortgage or otherwise, or effect a partition thereof, or create a trust or convert an agricultural land into non agricultural land, until he or the family unit, as the case may be, has furnished a declaration u/s 8, and the extent of land, if any, to be surrendered in respect of his holding or that of his family unit has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer under this Act taking possession of the land in excess of the ceiling area and a notification is published u/s 16; and any alienation made or partition effected or trust created in contravention of this section shall be null and void and any conversion so made shall be disregarded."
In view of the specific bar contained u/s 17(1), any alienation by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise or affecting partition or creating trust etc., after notified date, till issue of notification u/s 16 of the Act shall be null and void. But, now the question is documents sought to be enforced, marked as Exs. B-1 and B-3, are the agreements but not the sale, gift etc., as contemplated u/s 17(1) of the A.P. Land Reforms Act, but the trial Court relied on a judgment of this Court in Parameshwar Yadav (supra), wherein it was held as follows at Paragraphs 16 and 17:
"16. Apart from sale, gift or exchange, we have the words ''lease and usufructuary mortgage'' as well preceding the words "or otherwise". Therefore, in my view, it is very hard for this Court to accede to the submission made by the learned counsel for the petitioners that it is only in case of outright sale, the word ''alienation'' has been employed and not ''agreement of sale''. If that be so, the words ''lease'' and ''mortgage'' do not convey the said meaning and the word ''otherwise'' cannot be rendered otiose. That is the canon of construction. The Legislature must be imputed with certain policy or purpose in employing the word ''otherwise'' in the said sub-section. Therefore, it would not be causing any violence to the language or defeating the purpose of the scheme of the Act if agreement of sale is also included. In this case, agreement of sale coupled with possession has been entered into, which is indicative of part performance of the agreement of sale and the vendees certainly have rights as postulated u/s 53-A of the Transfer of Property Act. Therefore, the word ''otherwise'' in my judgment, takes in the case of agreement of sale as well.
The learned Additional Advocate General relied on a decision of the Gujarat High Court in Kanubhai Sankalchand Patel Vs. Nayankunj Co-operative Housing Society Ltd., Ahmedabad and Others, which was considering a case under Urban Land Ceiling Act, wherein a ban on transfer of vacant land exceeding ceiling limit within the meaning of sub-section (3) of Section 5 of that Act was imposed. While adverting to Section 42 of that Act, which gives a overriding effect to the provisions of the said Act over amongst others all agreements, similar to Section 28 of the Act, which reads:
"Act to override other Laws:- the provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a Court, tribunal or authority."
The Division Bench held:
"It is, therefore, clear that Section 42 gives an overriding effect to the provisions of the said Act over amongst others all agreements. Agreement of sale..................., therefore, will be hit by Sub-section (3) of Section 5 read with Section 42 of the said Act. In our opinion, therefore, agreement of sale..................cannot be enforced at law."
In this case, instead of the word ''transfer'', the word ''alienation'' has been employed in Section 17. Hence, juxtaposed with the provision enacted in Section 28 of the Act, it must be held that it has overriding effect over the provisions of the Act and the agreement of sale is overridden in view of the combined effect of Section 28 read with Section 17 of the Act."
Further, in para 26 it was held as follows:
"26. Hence, if the agreement which has been entered into, is held to be opposed to Section 17, then the estoppel, as raised by the petitioners, has no place. On the contrary the contention of the learned Additional Advocate General that there cannot be any estoppel against the statute finds its favour and, therefore, the same must be accepted."
In view of the principle laid down by this Court in the decision cited supra, the agreements are accepted as alienation, it will automatically defeat the intention of the legislature in incorporating Section 17(1), for the reason that if any registered sale deed is executed in pursuance of the agreement of sale, it will relate back to the date of execution of agreements of sale. On the other hand, if the agreements of sale are coupled with delivery of possession, the purchasers can claim an equitable right u/s 53-A of Transfer of Property Act. Therefore, it indirectly amounts to alienation which would defeat the very intention of the legislature in incorporating Section 17(1) of the A.P. Land Reforms Act.
Undoubtedly, according to Section 54 of Transfer of Property Act, an agreement of sale would not create any interest or confer any title in the immovable property. However, in view of the principle laid down by this Court in Parameshwar Yadav (supra), execution of an agreement of sale agreeing to sell the property coupled with delivery of possession creates an equitable right of part performance on the purchasers to protect their possession as a shield. Therefore, the principle laid down in Parameshwar Yadav (supra) can be applied to the present facts of the case and the agreements shall be treated as alienation within the ambit of Section 17(1) of A.P. Land Reforms Act.
In similar situation, the Division Bench of this Court in Makam Pedda Gangaiah and Others Vs. Potta Venkata Subba Reddy and Others, , held as follows at Para 6:
For all these reasons, we hold that we are of the prima facie opinion that this agreement of sale-Ex. A-1 was brought into existence to defeat the provisions of the Land Ceilings Act. Anyhow, since a regular appeal filed by the respondents is pending before the Land Reforms Appellate Tribunal, the Appellate Tribunal shall go into the matter independently without being obsessed by the observations made by this Court, in accordance with law. In the event of the appellants succeeding in the appeal, it is open to them to take steps that are open to them in law for getting the properties transferred in their names."
In similar circumstances, the Division Bench of this Court in B.R. Koteswara Rao Vs. G. Rameswari Bai @ G. Rameswari Devi and Another, , held as follows at Para 12:
"12.............................................Taking into consideration the language employed in Section 7(2) of the 1972 Act and Section 17(1) read with Section 17(3) of the 1973 Act, the Division Bench held that Section 7(2) of the 1973 Act is intended to set-at-naught the alienations made by volition or by intervention of the Court or ''otherwise''. From the said decision, and also the language employed in Section 7(2) of the 1973 Act, it is clear that any alienation made after 2-5-1972 and before 1-1-1975, in contravention of the Provisions of the 1973 Act, is null and void. Plaintiff in this case is a member of a family unit whose holding admittedly is more than the area prescribed by the 1973 Act. Even as per the case of the 1st defendant, husband of the plaintiff filed a declaration, and was directed to surrender some land. It is also the case of 1st defendant that husband of 1st defendant did not disclose the plaint schedule land in his declaration. Therefore, it is easy to see that had the husband of plaintiff disclosed the plaint schedule land also in his declaration, he would have had the necessity to surrender an extent of land equivalent to that of the plaint schedule land. Only then would the plaintiff be able to execute a sale deed in favour of the 1st defendant in respect of the plaint schedule property. If plaintiff were to execute a- sale deed in respect of the plaint schedule property without surrendering the land equivalent to that, extent such sale would be null and void as per Section 17 of the 1973 Act. Though aware of the declaration filed by the husband of plaintiff under the 1973 Act, 1st defendant does not seems to have filed objections. Very significantly 1st defendant in Para 6 of his written statement averred as follows:-
"As can be seen now, late G.V. Reddy became apprehensive that the excess agricultural lands held by him and the plaintiff would be taken over by the Government through the then impending legislation of the Agricultural Land Ceiling Act, 1976 (Sic). That with a view to outwit the incoming legislative measures late G.V. Reddy managed to sell the said land to this defendant and also ensured..............................."
From the said averment it is clear that even according to the 1st defendant the transaction in respect of the plaint schedule property, allegedly entered into with him, was intended to defeat the provisions of the 1973 Act. So the question of this Court enforcing such a contract, even if it is true and valid, does not arise, because Courts do not enforce contracts entered into with a view to defeat the provisions of an enactment."
The learned counsel for the defendants - appellants mainly contended that the agreements of sale are void against the Government but not against the 3rd parties and placed reliance on a judgment of this Court in Indukuru Ramachandrareddy and Another Vs. Agnigundala Venkata Ranga Rao, , wherein learned single Judge of this Court held as follows at Para 84:
"84..........................At whose instance it has to be treated as void and at whose instance it has to be treated as voidable? and whether a party can take such a plea after a period of 22 years as happened in this case? These are the important questions that arise for consideration. Having examined all the decisions cited by both sides and facts and circumstances of the case, I am of the view that the principles of pari delicto potier est condition possidentis and parin parem imperium non habet would apply. That means when a party itself is equally responsible or derives benefit out of such transaction the same party cannot say that it is void.......................... Therefore, a sale deed or an agreement of sale when it is no more inconsistent with any law, no more illegal and opposed to public policy i.e., no more defeat the object of any Act it can be considered though executed during the period of prohibition. Void documents do not bind the State, authorities, third party, but would bind a party who executed the same. When it is no more inconsistent with any law as referred above or when a party seeks to recover money paid or goods delivered in furtherance of it, such document can be taken into consideration but not for the purpose of defeating any law."
Even this judgment would not come to the aid of the defendants for the reason that this Court ultimately concluded that the agreements are void in view of bar contained u/s 17(1) of A.P. Land Reforms Act.
The learned counsel for the defendants has also drawn the attention of this Court to a decision of this Court in Rapeti Veerinaidu (died) by LRs. Vs. Thota Gangadhara Rao and Another, , wherein learned single Judge of this Court held that agreement of sale would not come within prohibition of transfer and the vendor having received substantial amount under sale agreement cannot take shelter under a law meant for a different purpose i.e., Section 17 of A.P. Land Reforms Act. Further, learned single Judge of this Court discussed various judgments under various enactments and relying on the various principles laid down in various judgments ultimately came to the conclusion in Para 9 therein that agreement of sale is not hit by Section 17(1) of the A.P. Land Reforms Act. However, in the facts of the above judgment, the agreement of sale was entered into before coming into force of the A.P. Land Reforms Act. Therefore, the bar contained u/s 17 of A.P. Land Reforms Act will have no application to such agreements entered into prior to commencement of this Act. Hence, this decision will not come to the aid of the defendants as the agreements in the facts of the present case were entered into subsequent to commencement of the A.P. Land Reforms Act and before issuing notification u/s 16 of A.P. Land Reforms Act.
In Swarajyalakshmi (supra), the Division Bench of this Court held as follows at Para 32:
"32. Once the order passed by the Primary Tribunal declaring the declarants/D1 to D3 as surplus landholders has become final, even if the surrender proceedings have been set aside as contended by the learned Senior Counsel, any sale of land which is subject matter of declaration until an order has been passed by the Revenue Divisional Officer under the Act for taking possession of the land in excess of the ceiling area and a notification is published u/s 16 will be null and void and any contravention so made shall be disregarded, and the bar contained u/s 17(1) shall apply to any transaction of the nature referred to in sub-section (1) in execution of a decree or order of a civil Court or of any award or order of any other authority."
In Y. Latchi Raju Vs. State of A.P. and others, , the learned single Judge of this Court held as follows:
"It becomes abundantly clear from Section 17 of the Act which is reproduced above that no transaction of sale of any land which is in excess of ceiling area as on 24.01.1971 shall on or after the notified date be alienated in any manner as set out in the said section until a declaration u/s 8 has been furnished and the extent of land to be surrendered has been determined by the Tribunal."
The learned single Judge of this Court ultimately came to the conclusion that such alienation is void. Here, the agreement is not alienation, according to the plaintiff. However, the principle laid down by this Court in Parameshwar Yadav (supra), is direct answer to the contention of learned counsel for the defendants, who filed the suits for specific performance.
In view of the principles laid down in all the above judgments, it is clear that the agreements of sale, marked as Exs. B-1 and B-3, are null and void.
Learned counsel for the defendants - appellants mainly contended that the provisions of Land Reforms Act have to be interpreted to achieve the real object in enacting the Land Reforms Law and the intention in enacting the law incorporating Section 17(1) is only to avoid alienations against the Government so as to avoid surrender of excess land, but not prohibiting any sale transaction of the property during pendency of land ceiling proceedings, which will take longer period. On the other hand, the learned counsel for the plaintiff - appellant contended that the land reforms law is exproprietary legislation, it must be interpreted strictly. No doubt, the land reforms law is an exproprietary legislation and that the language used in Section 17(1) is clear and unambiguous, the Court must interpret the provision contained therein only to achieve the real object of legislature in enacting the specific provision of the Act. Time and again the Apex Court decided the similar issue.
In State of Andhra Pradesh Vs. Vatsavyi Kumara Venkata Krishna Verma, , the Apex Court held as follows at Para 21:
"21. It is true that this Court is called upon to exercise jurisdiction under Article 136 of the Constitution of India. On the facts of the present case, in our opinion this is not a case where we should refuse to interfere under Article 136 of the Constitution of India as the decision rendered by the learned Single Judge of the High Court is clearly contrary to two decisions of three Judge Bench judgment of this Court in Merla Venkata Rao and S.B.P.V. Chalapathi Rao (supra). On facts, we have found that these transactions in question were entered into in anticipation of and with a view to avoiding and defeating the provisions of the Act as held by the Appellate Tribunal. This finding is found by us to be well sustained on the basis of evidence on record. Once it is so held, it is obvious that any attempt to get out of the sweep of such a legislation like the present which is meant to sub-serve the common good, cannot be countenanced and by refusing to exercise our jurisdiction under Article 136 of the Constitution of India we cannot put imprimatur on such an illegal act. As held by this Court in the case of Government of Union Territory of Pondicherry Vs. Mohammed Hussain (Dead) by Lrs., the Ceiling Act is a piece of legislation enacted with a view to achieve more equitable distribution of land for common good so as to sub-serve the Directive Principles contained in Article 39 of the Constitution of India. The provisions of such a legislation have to be so interpreted as to further the object of the legislation and not defeat the same. Any request on the part of the respondent for our noninterference in the present proceedings would clearly amount to defeating the object of such a beneficial legislation. Point No. (iii) is accordingly answered against the respondent and in favour of the appellant. No question of granting any relief to the respondent under Article 142 of the Constitution of India would survive in this view of the matter."
In another judgment reported in Dattatraya Govind Mahajan and Others Vs. State of Maharashtra and Another, , the Apex Court held as follows:
"36. In State of Kerala and Another Vs. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc., the considerable amplitude of agrarian reform in developing countries has been explained. If India lives in her villages, if a huge majority of its people live or starve on agriculture and under agrestic sub-culture, everything that promotes rural regeneration and the welfare of the agricultural community is agrarian reform. This being the conceptual sweep of the expression, all reasonable strategies for the limitation of holdings and maximization of surplus lands for distribution to the landless and designing a hopeful rural future obviously fall within the expanding projects of agrarian reform. To argue more is to labour the obvious and to interpret liberally is an obligation to the Constitution."
If the principles of interpretation in the above 2 decisions are applied to the present facts of the case, this Court must necessarily interpret the law to achieve the real objectives of the enactment. Similar question came up for consideration before this Court in Adusumalli Siva Narasimha Rao Vs. The State of A.P. and Others, , where this Court in Para 6 held as follows:
"6. It is a matter of concern that the petitioner has been subjected to so many rounds of litigation on account of the persistent indifference of the LRT. It is settled principle of law and in fact it is stated by LRAT in its order dated 16-02-1995 to the effect that if a particular item of land was held by any declarant for the purpose of inclusion in the holding, both in law as well as in logic, such items of property should be acceptable in surrender proceedings also. There cannot be two sets of norms - one for the purpose of inclusion in the holding and the other for acceptance in the surrender proceedings. By its very nature, the Act is an exproprietary legislation and strict interpretation of the provisions of the Act has to be made and strict compliance as to the procedure has to be ensured. Any deviation from the same would encroach upon the rights of the declarants. Unfortunately, the LRAT in its order under revision has chosen not to be consistent with its earlier orders. The orders of the Land Reforms Tribunal as well as Appellate Tribunal, which are under revision, cannot be sustained in law and on facts. Hence, they are set aside."
In view of the principles laid down in judgments referred supra, Section 17(1) is enacted only to avoid any complications in surrendering the land after determination of holding of the family. In the instant case, till today land ceiling proceedings are pending at the stage of surrender. On the other hand, learned counsel appearing for both the parties fairly conceded that the entire holding determined by Special Tahsildar (Land Reforms) is that the plaint schedule land belonging to the plaintiff was sold and the plaintiff produced surrender statement before the Land Reforms Tribunal surrendering the schedule property, but the Tribunal did not accept the same for the reason that it is in litigation. Therefore, it is evident from the record that these agreements of sale, marked as Exs. B-1 and B-3, appears to have been executed by the plaintiff only to avoid surrender of land. Hence, the intention of the plaintiff is manifest from her conduct that the agreements are executed only with an intention to avoid surrender of land in the land reforms proceedings. In such a case, by applying the principles of interpretation referred supra, I must necessarily held that the alienation including execution of agreements of sale are null and void and such agreements cannot be enforced.
One of the contentions of defendants - appellants is that the plaintiff is not entitled to question the agreements of sale in view of the limited defences available to her u/s 9 of Specific Relief Act. According to Section 9 of Specific Relief Act, the plaintiff is entitled to plead any ground as defence, which is available to her, under any law relating to contracts. Indian Contract Act is the law relating to contracts and Chapter-II deals with void and voidable agreements. If contract is obtained by fraud, undue influence, misrepresentation, mistake and coercion etc., the agreement itself is void under Chapter-II. According to Section 23 of Indian Contract Act, any immoral agreement or agreement opposed to public policy is void. If the object of an agreement is unlawful, such agreement is void u/s 23 of Indian Contract Act. Therefore, in view of the defences available under the Indian Contract Act, read with section 9 of Specific Relief Act, the plaintiff is entitled to raise a contention questioning enforceability of the agreements. Hence, the contention of the defendants that the plaintiff cannot raise defences questioning enforceability of the agreements is without any substance.
The present issue is purely a legal issue and I need not advert to the ore evidence to decide the present issue. As such, no evidence is referred to decide the present issue in view of the legal position referred supra and basing on the admitted facts about execution of Exs. B-1 and B-3 and contents of those two documents, it is evident that the agreements were executed only with an intention to avoid surrender of land in the land reforms proceedings since the plaintiff agreed to intimate about termination of proceedings in L.C.C. No. 47 of 1975 and execute registered sale deeds in favour of defendants 1 to 3. From this recital it is manifest that the intention of the plaintiff is clear that she executed Exs. B-1 and B-3 only to protract the litigation in Land Reforms Tribunal etc., and she was successful in her attempt. In view of notice, dated 19.07.1990, issued u/s 10(4) of A.P. Land Reforms Act, marked as Ex. A-5, where the Government did not accept surrender of schedule property in view of pending litigation over the property. If really, she had no intention to defeat the provisions of the Act, she would not have filed a surrender statement agreeing to surrender the schedule property. Filing of surrender statement for surrender of the schedule property is a strong circumstance to believe that the agreements of sale marked as Exs. B-1 and B-3 were executed only to defeat the intention of the legislature. Therefore, the agreements of sale, marked as Exs. B-1 and B-3, are null and void ab-initio and cannot be enforced under law and it is against the public policy in incorporating Section 17(1) of A.P. Land Reforms Act. As the agreements of sale are void under law, defendants 1 to 3 being the purchasers under the agreements of sale have to redeliver the property to the plaintiff, at the same time, the other defendants 4 to 9 and 13 though are in possession they are in wrongful possession and deliver vacant possession of the property to the plaintiff.
On an overall consideration of the entire findings of the trial Court, I find no illegality or irregularity warranting interference of this Court, even after reappraisal of facts with reference to legal position. Accordingly, I am in total agreement with the finding recorded by the trial Court regarding enforceability of Exs. B-1 and B-3 in any Court of law.
In view of my foregoing discussion, I hold that the agreements of sale marked as Exs. B-1 and B-3 are null and void and against the public policy. Accordingly, the point is answered in favour of the plaintiff and against the defendants.
POINT No. 2: The trial Court while decreeing the suit in O.S. No. 40 of 1985, directed the plaintiff therein to repay the sale consideration received under Exs. B-1 and B-3. The plaintiff filed the suit in O.S. No. 40 of 1985 for recovery of possession of the plaint schedule property. As the defendants 1 to 3 failed to pay balance of sale consideration, the plaintiff got issued a legal notice dated 18.05.1985, marked as Ex. A-1, admitting about execution of Exs. B-1 and B-3 and called upon the defendants to pay balance of sale consideration as agreed under Exs. B-1 and B-3, with a threat to cancel agreements and recover possession of the plaint schedule land with profits. A reply notice, dated 28.05.1985, was got issued by the defendants, marked as Ex. A-3, denying the contents of notice. At this stage, it is apposite to advert to the contents of agreements of sale, marked as Exs. B-1 and B-3. As per the terms and conditions of Exs. B-1 and B-3, the defendants 1 to 3 have to pay Rs. 17,500/- on or before 05.08.1980 and Rs. 14,500/- on or before 05.09.1980 and the balance of Rs. 7,000/- at the time of registration of sale deeds, and it appears from the contents of notice marked as Ex. A-1 that the defendants 1 to 3 did not pay the 2nd installment of Rs. 14,500/-, agreed to be paid on or before 05.09.1980. However, the trial Court believed payment of amount in installments on different dates including endorsements made on the reverse of Exs. B-1 and B-3 and concluded that the defendants 1 to 3 paid total amount of Rs. 89,000/- under consolidated receipt marked as Ex. B-6, but Ex. B-6 receipt itself is disputed by the plaintiff.
According to Section 65 of Indian Contract Act, when an agreement is discovered to be void, when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore or to make compensation from whom he received it. In view of Section 65 of Indian Contract Act, the plaintiff is under an obligation to repay the amount she received under Exs. B-1, B-3 and Ex. B-6, if it is genuine. But now, the question is whether such relief can be granted without any claim in the plaint in the suits filed by the defendants seeking relief of specific performance of agreements of sale.
According to Section 22 of Specific Relief Act, any person suing for specific performance of a contract for the transfer of immovable property may, in appropriate case, ask for - (a) possession, or partition and separate possession, of the property, in addition to such purpose; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid by him, in case his claim for specific performance is refused. The power of the Court to grant the relief of possession, repayment of earnest money etc., is contemplated under Clause 1(a) and (b) of Section 22 is hedged by sub-section (2), which says that no relief under clause (a) or (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed.
Therefore, to grant relief of repayment of advance amount received by the plaintiff, there must be specific claim for repayment of advance amount received by the plaintiff under Exs. B-1 and B-3 or any other document like Ex. B-6. But, in the instant case, none of the defendants, in the suits filed by them for specific performance of agreements of sale did claim the relief of refund of advance sale consideration allegedly paid by them to the plaintiff through defendants 1 to 3 as an alternative relief for the specific performance as required u/s 22(1)(b) of Specific Relief Act. Therefore, in view of specific bar contained u/s 22(2) of the Act, the Court is not bound to grant the relief of refund of advance amount. Even Sub-section (3) permits the defendants to amend their plaints filed for specific performance, at any stage, but they did not choose to amend their plaints claiming relief of refund of advance amount.
Section 22 of Specific Relief Act is incorporated to avoid multiplicity of proceedings and to put a quietus to the litigation, but it is the rule of pleading which permits the plaintiff therein to claim alternative relief in suit for specific performance for refund of advance amount in case, the Court refuses to grant a decree for specific performance. Thus, the Section would apply only where the Court does not in its discretion enforce a contract and not to the case where the contract is unenforceable. But, here the relief claimed by the defendants in the suits filed by them is only for specific performance and no alternative relief of refund of advance amount is claimed, but the Court declined the relief of specific performance on account of un-enforceability of Exs. B-1 and B-3 in Court of law. Thus, Section 22 would not attract to the present situation.
The trial Court refused to grant specific performance only on the ground that Exs. B-1 and B-3 are not enforceable under law and they are null and void. In such a case, Section 65 of Indian Contract Act would apply. The normal principle of pleading is that unless plaintiff claims the relief, the Court cannot travel beyond pleadings and grant the relief. Thus, it means option vests with the plaintiff to claim alternative relief and unless he claims such relief, the Court is not empowered to grant it, but here pleadings in the suits filed by the defendants for specific performance are totally silent regarding the claim for refund of amount, but the trial Court granted the relief perhaps invoking Section 65 of Indian Contract Act, ignoring Section 22 of Specific Relief Act. It is settled law that the Court cannot travel beyond pleadings and grant any relief, but the trial Court granted relief though there was no specific claim for refund of advance amount, if any paid, and in fact, defendants 4 to 13 did not pay any amount towards advance of sale consideration to the plaintiff. Even the defendants 2 and 3 also did not claim the alternative relief of refund of advance amount in the event the trial Court is not inclined to grant the relief of specific performance. In view of the consistent view expressed by the Apex Court in catena of decisions, the trial Court ought not to have granted the relief of refund of advance amount received by the plaintiff, towards part of sale consideration, either u/s 65 of Indian Contract Act or u/s 22 of Specific Relief Act, in view of the principles laid down by Apex Court in the following decisions.
The Apex Court in State of Maharashtra Vs. Hindustan Construction Company Ltd., held as follows:
"Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ."
The Apex Court in Kalyan Singh Chouhan Vs. C.P. Joshi, , reiterated the same principle.
In a recent judgment reported in Union of India (UOI) Vs. Ibrahim Uddin and Another, , the Apex Court held as follows:
"Relief not founded in pleading cannot be granted. A decision of a case cannot be based on ground outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of pleadings in that respect. No party can be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the parties in support of the case set up by it."
It was further held as follows:
"Where evidence was not in lines of pleadings, the said evidence cannot be looked into or relied upon."
The plaintiff denied receipt of any consideration under Ex. B-6 and disputed execution of Ex. B-6 contending that it is forged document but the trial Court recorded a finding that it is genuine. However, in view of my finding that the plaintiff is not liable to refund the amount in the absence of any relief claimed in the plaint, I need not decide the genuineness of Ex. B-6. Therefore, no finding is recorded about the genuineness of Ex. B-6.
In view of my foregoing discussion, directing the plaintiff to repay sale consideration received under Exs. B-1 and B-3 is erroneous on the face of the record. In view of the principles laid down in the above judgments, coupled with the bar contained u/s 22(2) of Specific Relief Act, ex-facie the relief granted by the trial Court for refund of advance of sale consideration is illegal. Therefore, the finding of the trial Court to the extent of directing the plaintiff to repay the advance of sale consideration is hereby set-aside holding this point in favour of the plaintiff and against the defendants.
POINT No. 3: Defendants 4 to 9 and 13 also filed suits claiming the relief of specific performance. Admittedly, they are not parties to Exs. B-1 and B-3 agreements of sale, who occupied the schedule lands in different parts making internal arrangement with the defendants 1 to 3 and when the defendants 4 to 9 and 13 are third parties to the contract they cannot sue for specific performance of agreements of sale. Either the party to the agreement or his authorized representative or legal heir may seek for relief of specific performance in view of Section 15 of Specific Relief Act, which reads as follows:
"15. Who may obtain specific performance : Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by--
(a) any party thereto;
(b) the representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;"
Clause (b) of Section 15 permits the representative in interest or the principal of any party therein to obtain relief of specific performance but here there is nothing on record to establish that the defendants 4 to 9 and 13 are the representatives of defendants 1 to 3 to seek relief of specific performance. Of course, there is a pleading in the plaints filed by the defendants and oral evidence but it is not reduced into writing. Thus, there is no privity of contract between the plaintiff and defendants 4 to 9 and 13. However, subject to establishing that they are representatives of defendants 1 to 3 they can seek the relief of specific performance.
Admittedly, the defendants 4 to 9 and 13 are not the representatives of defendants 1 to 3 but they are claiming that defendants 1 to 3 purchased the suit schedule property on their behalf and they divided the same into plots and enjoying, raising crop. Thus, the agreements of sale are only between defendants 1 to 3 and the plaintiff and not between the defendants 4 to 9 and 13 and the plaintiff. The recitals of Exs. B-1 and B-3 also go to show that the plaintiff agreed to execute registered sale deeds in favour of defendants 1 to 3 or in favour of their nominees. The plaintiff herself admitted that there was an internal arrangement among the defendants, divided the property into plots, enjoying their plots by the respective defendants. For division of property into plots, the plaintiff never gave consent and such division is without intervention of the plaintiff. Even if the property was purchased on behalf of the defendants 4 to 9 and 13 or any other defendants by the defendants 1 to 3, at best they can seek the relief of specific performance from the plaintiff and obtain registered sale deeds in their favour or in favour of their nominees for the respective plots in their possession, subject to their arrangement, but the defendants 4 to 9 and 13 who are not parties to the agreements are not entitled to sue being the strangers to the contract, as there is no privity of contract between plaintiff and defendants 4 to 9 and 13.
A contract cannot confer rights or impose obligations arising under it on any persons except the parties to it. Thus, no one except the parties to contract are entitled to sue. This principle is known as privity of contract. The doctrine has two aspects, the first aspect is that no one but the parties to contract are entitled to it, contracting parties may confer rights or benefits on third parties in the form of promise to pay, or to perform a service, or a promise not to sue, but the third party on whom such right or benefit is conferred by agreement can neither sue under it, nor can rely on the defences based on the agreement; the second aspect of the doctrine is that parties to a contract cannot impose liabilities on agreement. A person cannot be subject to the burden of an agreement to which he is not a party and it is the counter part of the proposition that a third party cannot acquire right under contract. None of the exceptions are applicable to the present facts of the case. Even if consideration under the agreements was paid by third party, such third party is not competent to sue for enforcement of the agreement.
In Kasturi Vs. Iyyamperumal and Others, , the Apex Court held as follows in Para 18:
"18............................................ It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property."
In view of those principles, the Court has to decide the suit between the parties to the agreement, when it is filed for specific performance, but in the instant case, defendants 4 to 9 and 13 are not parties to the agreements of sale, marked as Exs. B-1 and B-3, but they filed suits for enforcement of their rights seeking relief of specific performance though they did not pay consideration under Exs. B-1 and B-3 to the plaintiff. Thereby, they are not entitled to claim relief of specific performance of agreements of sale, marked as Exs. B-1 and B-3.
In M.C. Chacko Vs. The State Bank of Travancore, Trivandrum, , the Apex Court held as follows at Para 9:
"9......................................... Clause (d) of Section 2 of the Contract Act widens the definition of ''consideration'' so as to enable a party to a contract to enforce the same in India in certain cases in which the English Law would regard the party as the recipient of a purely voluntary promise and would refuse to him a right of action on the ground of nudum pactum. Not only, however, is there nothing in Section 2 to encourage the idea that contracts can be enforced by a person who is not a party to the contract, but this notion is rightly excluded by the definition of ''promisor'' and ''promisee''."
In view of the principle laid down by the Apex Court in the decision cited supra, a stranger to agreement or a person who has no privity of contract cannot sue for specific performance. In the instant case, defendants 4 to 9 and 13 are admittedly not parties to Exs. B-1 and B-3, thereby they are disentitled to claim the relief of specific performance, at best, defendants 1 to 3 alone are entitled to file suits for specific performance and obtain sale deeds either in their favour or in favour of their nominees i.e., defendants 4 to 9 and 13. Hence, the defendants 4 to 9 and 13 are strangers to Exs. B-1 and B-3 and there is no privity of contract between plaintiff and defendants 4 to 9 and 13, thereby the suits filed by defendants 4 to 9 and 13 for specific performance are not maintainable and liable to be dismissed on this ground alone. The 1st defendant Surampudi Bapiraju alone is competent to enforce Ex. B-1, but so far he did not file any suit for specific performance. The other defendants 4 to 9 and 13 claimed relief on account of the internal arrangement for obtaining sale deeds for different plots purchased under Exs. B-1 and B-3, between 3rd defendant and defendants 4 to 9 and 13. Therefore, the internal arrangement between them is not binding on the plaintiff.
In view of my foregoing discussion, I hold that there is no privity of contract between the plaintiff and defendants 4 to 9 and 13, as they are strangers to Exs. B-1 and B-3 and therefore not entitled to claim the relief of specific performance basing on Exs. B-1 and B-3. Accordingly, the point is decided.
POINT No. 4: As per my finding on Point No. 1, Exs. B-1 and B-3 are not enforceable under law and they are null and void in view of Section 17(1) of A.P. Land Reforms Act, whereby their possession in pursuance of the agreements though lawful, but the agreements are void since the plaintiff herself inducted defendants 1 to 3 in possession of the property, obviously for different reasons, receiving consideration. However, in other words, defendants 1 to 3 were inducted into lawful possession in pursuance of the agreements of sale which are null and void but did not comply the terms and conditions of Exs. B-1 and B-3 in payment of balance of sale consideration and the plaintiff got issued a legal notice Ex. A-1 demanding for payment of balance of sale consideration with a threat to cancel the agreements of sale, if balance of sale consideration as agreed is not paid in terms of Exs. B-1 and B-3. But, they did not comply the legitimate demand made by the plaintiff and continuing in possession. Therefore, the agreements of sale marked as Exs. B-1 and B-3 are deemed to have cancelled, thereby their possession becomes unlawful. Hence, the trial Court rightly held that their possession became unlawful on account of cancellation of agreements, marked as Exs. B-1 and B-3, due to non performance of their part of obligation, strictly adhering to the terms of Exs. B-1 and B-3. That apart, Exs. B-1 and B-3 are void documents ex-facie; therefore, the defendants are not entitled to continue in possession and enjoyment of the property. Even otherwise, when Exs. B-1 and B-3 are void, the defendants are bound to redeliver the possession in view of Section 65 of Indian Contract Act, as the defendants have to return the benefit received under the void agreement and consequently the defendants are liable to redeliver vacant possession of the property to the plaintiff.
Added to that, defendants 4 to 13 did not take possession of the property from the plaintiff in pursuance of Exs. B-1 and B-3. However, due to internal arrangement among themselves they are continuing in possession and their possession without consent of the plaintiff can certainly be termed as illegal and the internal arrangement among the defendants is not binding on the plaintiff. Hence, their possession is illegal and they are liable to vacate and deliver vacant possession of the property to the plaintiff. The trial court on an overall consideration of the pleadings and oral evidence with reference to law, ordered for delivery of vacant possession to the plaintiff holding that Exs. B-1 and B-3 are void documents, finding of trial Court does not call for interference of this Court. Thus, the finding is hereby confirmed holding this point in favour of the plaintiff and against the defendants.
POINT No. 5: The 3rd defendant filed O.S. No. 53 of 1985 against the plaintiff and Surampudi Bapiraju, and the other defendants also filed different suits as shown in the table above, claiming decree for specific performance of agreements of sale dated 05.06.1980, for different extents of land, but the total property sold under EX. B-3 is Ac.3.50 cents and under Exs. B-1 is Ac.3.45 cents. The plaintiff did not raise any specific plea in the written statement about the maintainability of the suit on the ground of splitting up of the joint promise. However, it is purely a legal plea, as the defendants 2 and 3 are the joint promissors under Ex. B-3 the same cannot be split up and such plea can be raised for the first time in the Appeal. Learned counsel for the plaintiff in support of his contention drawn my attention to the decision of the Apex Court in Jahar Roy (Dead) through L.Rs. and Another Vs. Premji Bhimji Mansata and Another, , wherein in Para 12 of the judgment the Apex Court held as follows:
"12..........................................This is a general rule which takes care of the interests of the defendant who is interested, in the case of a suit like this, in having all the lessors as parties to the suit so that he may not be subjected to further litigation. But the rule is not without an exception. The reason is that a person cannot be compelled to be a plaintiff for, as is obvious, he cannot be compelled to bring an action at law if he does not want to do so. At the same time, it is equally true that a person cannot be prevented from bringing an action, by any rule of law or practice, merely because he is a joint promise and the other promise refuses to join as a co-plaintiff. The proper and the only course in such cases is to join him as a proforma defendant."
From a bare reading of Section 45 of Indian Contract Act, it is clear that joint promissors may sue for performance jointly but they cannot split the promise into two and claim performance independently.
In AIR 1937 186 (Nagpur) , the Kolkata High Court held when one of the co-contracting vendees refuses to join in the sale to be executed in their favour jointly, and the other contracting vendees bring a suit for specific performance of the contract, the suit being one to enforce the original contract as a whole, there is no variation in the contract and the suit is not one to enforce the contract piecemeal. The other willing co-contacting vendees have a right to sue for specific performance of the contract even though one of the co-contractors refuses to join them in the sale. The 1st defendant Surampudi Bapiraju did not file any suit basing on Ex. B-1 for specific performance of agreement of sale but, the other defendants 4 to 9 and 13 filed the suits without specifying the exact extent purchased from the original holders. Apart from that, the defendants 2 and 3 filed 2 separate suits claiming specific performance for Ac.1.00 and Ac.2.00 cents, respectively leaving the other part of the land covered by Ex. B-3. But, the 1st defendant herein was arrayed as defendant in all the other suits filed by the defendants. Thus, the defendants 4 to 9 and 13 claimed specific performance dividing the agreements of sale or joint promise into parts which is impermissible under law. Added to that, they are not parties to Ex. B-1 and they are not claiming that they are representatives of the 1st defendant. Hence, splitting up of joint promises is impermissible under law and on this ground alone the suits filed by defendants 4 to 9 and 13, so also the suits filed by defendants 2 and 3 are liable to be dismissed.
In view of the principles referred supra, the agreement of sale marked as Ex. B-3 for Ac.3.50 cents cannot be split into two and seek specific performance of part of Ex. B-3 by the 3rd defendant. Hence, the suit Nos. 53 of 1985 and 19 of 1991 filed by defendants 3 and 2 against the plaintiff in O.S. No. 40 of 1985 for an extent of Ac.2.00 cents and Ac.1.00 cents are not maintainable ex-facie, as the agreement was split up into two and sought for its enforcement in piecemeal. Defendants 4 to 9 and 13 also filed suits for specific performance splitting joint promise into parts and sought for specific performance in piecemeal, which is impermissible under law. Accordingly, the point is held in favour of the plaintiff and against the defendants.
POINT No. 6: Defendants 2 to 9 and 13 claimed relief of specific performance of agreements of sale marked as Exs. B-1 and B-3 alleging that they are ready and willing to perform their part of obligation and paid substantial amount, strictly complying the terms and conditions of Exs. B-1 and B-3 but, plaintiff herself avoided to execute registered sale deeds. Whereas, the plaintiffs contention is that the defendants did not comply the terms and conditions of Exs. B-1 and B-3 despite issuing legal notice with a threat to terminate the agreements. Therefore, they are not ready and willing to perform their obligation under agreements of sale, consequently not entitled to seek specific performance of agreements of sale basing on Exs. B-1 and B-3.
In view of the rival contentions, it is the duty of this Court to decide the genuineness or truth in the plea of readiness and willingness pleaded by the plaintiff, taking into consideration the various circumstances. At this stage, I feel that it is appropriate to advert to the contents of agreements of sale, marked as Exs. B-1 and B-3. As per the terms of agreements of sale, defendants 1 to 3 have to pay Rs. 17,500/- on or before 05.08.1980 and pay balance of Rs. 14,500/- on or before 05.09.1980 while retaining an amount of Rs. 7,000/- which is agreed to be paid on the date of execution of registered sale deeds, but as seen from Exs. B-4 and B-5, defendants 1 and 2 paid Rs. 4,500/- and Rs. 17,500/- got the same endorsed on the reverse of Exs. B-1 and B-3 respectively. Thus, the plaintiff did not comply the terms and conditions of Exs. B-1 and B-3. It is the specific contention of the defendants that they paid Rs. 89,000/- under Ex. B-6 on various dates but the same is denied by the plaintiff. Even if the contents of Exs. B-6 are accepted, the defendants 1 to 3 paid Rs. 10,000/- on 05.06.1980, Rs. 22,000/- on 04.08.1980, Rs. 8,000/- on 30.08.1980, Rs. 6,000/- on 05.10.1980, Rs. 23,000/- on 18.12.1980, Rs. 5,000/- on 15.03.1981 and Rs. 15,000/- without specifying any date. Even if the payments mentioned in Exs. B-6 are accepted, it is clear that the defendants 1 to 3 did not pay balance of sale consideration as agreed. Even otherwise, the alleged payments are doubtful for the reason that an amount of Rs. 10,000/- was allegedly paid on 05.06.1980 which was endorsed on the reverse of Exs. B-1, but the later payment dated 04.08.1980 was not endorsed. Similarly, Rs. 22,000/- allegedly paid on 04.08.1980 was also not endorsed on any of the documents. This creates any amount of suspicion about the payment of amount on the alleged dates. If really, defendants 1 to 3 paid those amounts at the time of obtaining endorsements marked as Exs. B-4 and B-5, they would have got it endorsed on the reverse of agreements, but no explanation is forthcoming explaining the reason. Even assuming for a moment, that those payments are true, still the defendants have to pay balance of sale consideration of Rs. 14,500/- under different agreements. Obviously for different reasons by 05.09.1980, they allegedly paid only Rs. 62,000/- in total by 30.08.1980, but whereas the defendants 1 and 3 agreed to pay Rs. 17,500/- under 2 agreements marked as Exs. B-1 and B-3 on or before 05.08.1980 and Rs. 14,500/- on or before 05.09.1980 in addition to Rs. 5,000/- already paid as advance. Therefore, the total amount required to be paid by the defendants 1 to 3 on or before 05.09.1980 was Rs. 64,000/-, but whereas they paid Rs. 62,000/- only. Hence, the defendants 1 to 3 did not comply the terms and conditions of the agreements, even assuming that Ex. B-6 is true. In such a case, the defendants 1 to 3 are not entitled to claim equitable relief of specific performance as they committed breach of terms and conditions of Exs. B-1 and B-3 though the amount remained un-paid by them is meager.
The plaintiff issued Ex. A-1 notice dated 18.05.1985 and a reply got issued by the defendants was marked as Ex. A-2. In the reply notice, there was no reference about the payments mentioned in Ex. B-6. If really, these payments were made before issuance of Ex. A-2, they would have referred those payments and obtaining Ex. B-6 in the notice itself. This is another strong circumstance to doubt the payments mentioned in Ex. B-6.
The agreement of sale of immovable of property is a reciprocal agreement; both parties have to perform their part of obligations. Performance of obligation of individuals depends upon the terms and conditions of the agreement.
In a recent judgment reported in Mrs. Saradamani Kandappan Vs. Mrs. S. Rajalakshmi and Others, , the Apex Court held as follows:
"The order of performance of reciprocal promises does not depend upon the order in which the terms of the agreement are reduced into writing. The order of performance should be expressly stated or provided, that is, the agreement should say only after performance of obligations of vendors, the purchaser will have to perform her obligations. In the present case the agreement of sale expressly provided that the purchaser shall pay the balance sale consideration within time schedule as specified. The payment of sale price was delinked from execution of sale deed. The purchaser had to fulfill her obligation in regard to payment of price and thereafter vendors were required to perform their reciprocal promise of executing the sale deed, whenever required by the purchaser. The agreement provided specifically that having paid the balance price, if the purchaser is not satisfied about the title and on being intimated about the same if the vendors fail to satisfy the purchaser about their title, all amounts paid towards the price should be refunded to purchaser. This clearly demonstrates that the payment of balance of sale price in terms of the contract was not postponed nor made conditional upon the purchaser being satisfied about the title, but that payment of the balance price should be made to the vendors as agreed unconditionally. In such circumstances the plea of purchaser that since clause providing that execution of the sale deed shall depend upon the purchaser getting satisfied regarding title to the lands and that properly is not subject of any encumbrance; precedes clause requiring payment of balance consideration in three instalments, the satisfaction of the purchaser in regard to the vendor''s title to the land and encumbrance, was a condition precedent for payment of the balance consideration cannot be accepted. Since section 52 cannot come in aid of purchaser to save his non-payment of balance consideration within time fixed when time was essence of contract. Therefore, the failure of the appellant purchaser to pay the balance sale consideration within time fixed, clearly amounted to breach of contract. As the time for payment was, the essence of the contract, the respondents were justified in determining the agreement of sale. The rejection of the prayer for specific performance was, therefore, proper:"
The principle laid down by the Apex Court in Saradamani Kandappan (18 supra) is applicable to the present facts of the case directly. In the instant case, the order of performance was mentioned in the agreements marked as Exs. B-1 and B-3, more particularly, regarding payment of balance of sale consideration in 2 instalments i.e., Rs. 17,500/- on or before 05.08.1980 and Rs. 14,500/- on or before 05.09.1980, but this has not been complied strictly adhering to the terms and conditions. If really, defendants 1 to 3 are always ready and willing to perform their part of obligation, in view of Section 16(c) of Specific Relief Act, they would have paid the amount strictly adhering to the terms and conditions of agreements. Thus, the defendants failed to prove that they are ready and willing to perform their part of obligation and payment of any amount subsequent to the dates fixed under Exs. B-1 and B-3 would not serve any purpose and not sufficient to prove their readiness and willingness to perform the obligations by the defendants. Thus, the defendants though pleaded that they are ready and willing to perform their part of obligation, failed to establish the plea of readiness and willingness complying Section 16(c) of Specific Relief Act.
If the principle laid down by the Apex Court in Saradamani Kandappan (18 supra) is applied to the present facts of the case, considering changed circumstances for surrender of the land etc., in the land ceiling proceedings, I am of the view that the defendants 1 to 3 are not entitled to claim the relief of specific performance.
One of the contentions of the learned counsel for the plaintiff -appellant is that when the defendants approached the Court with false plea of payment of balance of sale consideration, they are disentitled to claim equitable relief of specific performance. No doubt, as per the terms of agreements of sale, Rs. 64,000/- is agreed to be paid on or before 05.09.1980 under Exs. B-1 and B-3 in total, but they allegedly paid only Rs. 62,000/- and, therefore, they approached the Court with false plea of payment. The relief of specific performance is purely a discretionary one and that the party who seeks such relief must approach the Court with clean hands, otherwise the Court is not bound to exercise its discretion to grant relief u/s 20 of Specific Relief Act, in view of ration laid down by the Apex Court in Lourdu Mari David (19 infra).
In Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others, , the Apex Court held as follows:
"It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
In the instant case, though the defendants 1 to 3 agreed to pay balance of sale consideration in two instalments at the rate of Rs. 17,500/- and Rs. 14,500/- on or before 08.08.1980, 05.09.1980, they did not pay balance of sale consideration despite issuing notice, nor did they disclose the alleged payments mentioned in Ex. B-6. Even if the payments referred in Ex. B-6 are accepted, still the defendants 1 to 3 did not pay Rs. 2,000/- as agreed but contended they paid entire amount, which is ex-facie false. Hence, defendants did not approach the Court with clean hands.
Thus, from the settled legal position referred to above, it is clear that the suit for specific performance shall be filed within a reasonable time and what is reasonable time depends upon the facts and circumstances of each case and that the parties who seek the relief of specific performance has to approach the Court with clean hands. When the defendants approached the court with false plea, they are not entitled to claim the relief of specific performance as in the present case.
In view of my foregoing discussion, I find that the defendants miserably failed to establish that they are ready and willing to perform their obligation, which is mandatory u/s 16 of Specific Relief Act, and on the other hand, they approached the Court with false plea of payment of entire sale consideration, as agreed under Exs. B-1 and B-3 and the agreements of sale marked as Exs. B-1 and B-3 are void documents and not enforceable under law, thereby this Court cannot exercise its discretion to grant the relief of specific performance u/s 20 of Specific Relief Act. Hence, the trial Court rightly declined to grant the relief of specific performance and even after discerning entire oral and documentary evidence with reference to legal position, I find no illegality in the impugned decrees and common judgment passed by the trial Court declining to grant the relief of specific performance in favour of the defendants. Hence, I am in total agreement with the finding recorded by the trial Court, as I find no illegality or perversity in the finding of the trial Court and the same is hereby confirmed holding this point in favour of the plaintiff and against the defendants.
In view of my findings on Point Nos. 1 to 6, the plaintiff in O.S. No. 40 of 1985 is entitled to recover possession of the plaint schedule property and the defendants in O.S. No. 40 of 1985 are not entitled to claim the relief of specific performance of agreements of sale. Hence, the impugned decree and common judgment of the trial Court to the above extent are hereby confirmed setting-aside the direction to repay advance sale consideration received by the plaintiff from the defendants, as it is against the settled principles of law.
In the result, the Appeal Suit No. 419 of 1995 is allowed, setting-aside the finding of the trial Court, wherein the plaintiff was directed to pay the sale consideration received by her, while confirming remaining part of the impugned decrees and common judgment.
Accordingly, the Transfer Appeal Suit Nos. 3145, 3147, 3148, 3149, 3150 of 1999, 958, 959, 960 and 1223 of 2000 preferred by the plaintiff -appellant are allowed setting aside the part of decrees for repayment of advance of sale consideration to defendants, while confirming the impugned decrees and common judgment declining to grant the relief of specific performance in favour of the defendants.
The Appeal Suit No. 1137 of 1994 and Transfer Appeal Suit Nos. 307, 308, 309 and 599 of 1997, 65, 90 and 129 of 1998 and 473 of 2005 preferred by the defendants are dismissed, declining to grant the relief of specific performance of agreements of sale.
In consequence, miscellaneous petitions, if any, pending in these appeals, shall stand closed. No order as to costs.