Smt. G. Laxmamma vs N. Narsimha and Another

P. Ramakrishnam Raju, J.—The plaintiff-respondent in A.S. No. 109 of 1986 is the appellant in S.A. No. 125 of 1989. The suit was filed for declaration of title in respect of a vacant site measuring 81.60 sq. yards, being Plot No. 9 and Municipal No. 1-8-588/31, Azamabad, Hyderabad and for permanent injunction.

The case of the appellant is; she purchased the suit land under a Registered sale deed dated 14-7-1980, from one Parameshwar, who in turn purchased the same from one Bhimaiah. Ever since the appellant is in peaceful possession. While so, the second respondent-defendant who was employed as Watchman by the vendor in collusion with the first defendant-respondent threatened to dispossess the appellant. Hence, she filed the suit.

The first respondent in his written statement stated that he entered into an agreement of sale dated 15-5-1978 with the original owner Sri Gundla Bhimaiah, for a total consideration of Rs. 5,000/-, paid an advance amount of Rs. 2,000/- and he was put in possession in part performance of the contract. He permitted the second respondent to erect a hut to reside therein, that devotees of the locality constructed a Shiva Temple on the suit land by raising donations. Therefore, the suit has to be dismissed. The plaintiff examined herself as P.W.I besides examining three more witnesses including her vendor as P.W.2. She also marked Exs.A-1 to A-7. The first respondent examined himself as D.W.I besides two other witnesses and marked Exs.B-1 and B-1(a). The suit was originally decreed by the trial Court which was confirmed in appeal. In second appeal, the said decree was set aside and the matter was remanded to the trial Court for fresh disposal, after giving opportunity to both the parties to adduce further evidence. After remand, the trial Court decreed the suit and the appellate Court reversed the said finding in appeal. Hence the second appeal.

Sri L. Narasimha Reddy, learned Counsel for the appellant submits that the appellant is entitled to a decree inasmuch as she had purchased the same from the vendor under a registered sale deed for proper consideration and the first respondent cannot challenge her title unless he establishes that the registered sale deed is not for consideration or the plaintiff had notice of the earlier transaction. It is also his further contention, that the first respondent has not even pleaded that he is ready and willing to perform his part of the contract. I think that the learned counsel for the appellant is right on both . the counts. The first respondent on whom the burden lies had to plead and establish that he is always ready and willing to perform his part of the contract. He has not even raised the said plea. He merely stated that the registered sale deed obtained by the appellant is a sham and bogus transaction. He did not even plead that the appellant had notice of his agreement.

Sri L. Narasimha Reddy, learned counsel for the appellant relied on a decision of this Court in K. Venkatasubbayya Vs. K. Rosayya and Others , wherein the Chief Justice Sri Subba Rao, as he then was observed as follows:

"Before invoking this equitable doctrine, the transferee should have performed or was willing to perform his part of the contract. The proviso, in terms, saves the rights of a transferee from the owner for consideration without notice of the contract or of the part performance of it...........If title has passed to him despite his knowledge of the earlier contract, the defendant could non-suit him only if he had complied with the conditions laid down u/s 53-A of the Act."

Therefore, the learned counsel for'' the appellant contends that even assuming knowledge on the part of the appellant regarding the prior agreement, still the first respondent has to establish that he was always ready and willing to perform his part of the contract. As already stated in this case, there is no such averment. Therefore, the first respondent cannot pre-empt the title from being vested in the appellant.

It is next contended by Sri L. Narasimha Reddy, learned counsel for the appellant that title would pass on to the appellant from his vendor, under the registered sale deed, which is valid under Law. Even assuming, it is voidable, it would be valid till it is set aside by the Court and the first respondent can only attack the same by either showing that the appellant is not a bona fide purchaser for consideration or she had knowledge of prior agreement in his favour. In this case, the first respondent has not pleaded specifically that the sale in favour of the appellant is not for consideration or the appellant had knowledge of the prior agreement in his favour. It is true as the title had passed to the appellant under the registered document, if the first respondent seeks to upset the title in favour of the appellant, he must plead and prove that the sale deed in favour of the appellant is not for consideration or the appellant had knowledge of the prior agreement. The first respondent had not taken these pleas in his written statement. What all he stated is, that the sale in favour of the appellant is a sham and bogus one. From these averments, it cannot be inferred that the sale is not supported by consideration. In other words, it cannot be said, that this averment implies the knowledge of the prior agreement on the part of the appellant.

Therefore, agreeing with the learned counsel for the appellant, I hold that the first respondent has failed to establish that the appellant had knowledge of the prior agreement. Coming to the question of consideration, passing of consideration under the sale deed, not only P.W.I the plaintiff but also her vendor P.W.2 had stated that the consideration passed under the sale deed, as such, the first respondent could not establish that consideration did not pass under the sale deed.

For all these reasons, the decree and Judgment of the lower appellate Court cannot stand and they are accordingly set aside, and the decree and judgment of the trial Court is restored. In the circumstances of the case, there shall be no order as to costs.