Vemuru Venkata Krishna Rao and Others vs Yelamanchili Ranga Rao

P.S. Narayana, J.—Introductory facts : These Appeals are being disposed of by this Common Judgment in view of the commonality of the questions of fact and questions of Law, the parties and the subject matter as well.

A.S. No. 1121/94 is preferred as against the Decree and Judgment in O.S. No. 259/84 on the file of Subordinate Judge, Gudivada. The respondent in the said Appeal, as plaintiff in O.S. No. 259/84 aforesaid, instituted the suit for recovery of possession of the plaint schedule property and for profits or in the alternative for recovery of unpaid purchase money together with interest and damages. The 1st defendant in the said suit died during the pendency of the suit and hence the defendants 2 to 5 were added as legal representatives of the 1st defendant as per orders in I.A. No. 1399/91 dated 21-1-1992.

A.S. No. 1212/94 is an Appeal preferred by the unsuccessful plaintiffs in O.S. No. 30/85 on the file of Subordinate Judge, Gudivada as against the plaintiff in O.S. No. 259/84 showing him as defendant praying for the relief of specific performance of agreement of sale and no doubt the 2nd plaintiff is said to be the assignee for an extent of Ac. 5-70 cents in the plaint schedule property by virtue of an assignment deed. It is needless to say that defendants 2 to 5 in O.S. No. 259/84 are plaintiffs 3 to 6 in O.S. No. 30/85 and in addition thereto, no doubt the 2nd plaintiff as an assignee also is shown as a party in O.S. No. 30/85 aforesaid.

V. Venkatakrishna Rao v. Shanmukha Prasad and V. Seetha Manoharam, respondents 2 to 4 in I.A. No. 823/95 on the file of Senior Civil Judge, Gudivada, had preferred A.S. No. 557/2002 as against Yelamanchili Ranga Rao, the petitioner in I.A. No. 823/95 in O.S. No. 259/84, the plaintiff in O.S. No. 259/84 and the defendant in O.S. No. 30/85, showing Girija Kumari as 2nd respondent and specifying as not a necessary party to the Appeal. The said Yelamanchili Ranga Rao, the plaintiff in O.S. No. 259/84 filed an application I.A. No. 823/95 on the file of Senior Civil Judge, Gudivada for ascertainment of mesne profits over an extent of Acs.11-40 cents in R.S. No. 183 of Ampapuram from 13-9-1984 till 14-7-1995, the date of filing of the application. The learned Senior Civil Judge, Gudivada, decided the quantum of mesne profits and aggrieved by the same, the present Appeal A.S. No. 557/2002 had been preferred by appellants 2, 3 and 4 in A.S. No. 1212/94 and appellants 1, 2 and 3 in A.S. No. 1121/94. It is needless to say that the result of this Appeal A.S. No. 557/2002 would depend upon the result of the other two Appeals specified supra preferred as against the decree of recovery of possession and also yet another decree wherein the relief of specific performance had been negatived. It is also brought to the notice of this Court that in pursuance of the interim orders made by this Court, certain amounts had been deposited which had been decided by the learned Senior Civil Judge, Gudivada as mesne profits. These are the brief facts of the three Appeals.

It may also be pertinent to note that both the suits O.S. No. 259/84 and O.S. No. 30/85 were decided by the learned Subordinate Judge, Gudivada by a common trial and disposed of by way of a Common Judgment. In view of the said commonality, all these three Appeals are being disposed of by this Common Judgment.

Contentions of Sri Raghu : Sri C.Raghu, the learned Counsel representing the appellants in all these Appeals had taken this Court through the respective pleadings of the parties and also the evidence available on record and would maintain that in the peculiar facts and circumstances, the findings recorded by the Court of first instance to the effect that by notice the respondent made time the essence of contract and despite the same, the father of the appellants in A.S. No. 1121/94 had not been ready and willing to perform his part of the contract and hence the relief of specific performance to be negatived, cannot be sustainable findings in the light of the peculiar facts and circumstances of this case. The learned Counsel while making elaborate submissions had pointed out that the respondent having parted with even the electric motor and the pump set, taking advantage of the fact that the same was not specified in the agreement of sale, began disputing the same and in fact had put these parties into some trouble. The learned Counsel also would submit that the concept of readiness and willingness cannot be appreciated just as a straight jacket formula and the same may have to be appreciated in the background of the facts and circumstances of a particular given case. The learned Counsel also would maintain that the fact that there was a dispute relating to the right of way by third parties and the fact that a suit was instituted by both these contracting parties as against the third parties and the suit was pending for sufficiently a long time which was disposed of long thereafter, these facts are not in serious controversy. The learned Counsel would maintain that in the light of these facts, if the evidence of the mediators to be carefully appreciated, it is clear that the stand taken by the appellants is the correct stand. The learned Counsel also would submit that it is not as though these parties were unready and unwilling to perform their part of the contract and the mere fact that even by the date of institution of the suit the amount had been paid to the Advocate for making deposit also would amply establish the stand taken by the appellants relating to their readiness and willingness to perform their part of the contract. The learned Counsel also pointed out to the relevant dates, the exchange of notices, the terms and conditions specified in the contract and would maintain that in the facts and circumstances, the parties had not treated the time as essence of contract since the interest payable subsequent thereto also had been stipulated and only in view of the fact that there was some hike of prices or for certain other extraneous reasons, having entered into the contract, the respondent having kept quiet for sufficiently a long time even after the lapse of the stipulated time in the contract, thought of issuing a notice requesting for compliance and subsequent thereto approached an Advocate who had triggered the litigation while making a demand for performance and also specifying the contract as having stood cancelled forfeiting the advance amount as well. The Counsel also had taken this Court through the contents of these notices and the reply notice as well and also explained under what circumstances the suit for specific performance had been instituted immediately after the institution of the suit for recovery of possession by the respondent. The Counsel would contend that on over-all appreciation of the facts and circumstances, since the contract is not in controversy, the fact that there was delivery of possession also being not in controversy and the fact that a suit was instituted relating to the claim of right of way made by certain third parties praying for appropriate reliefs also not being in controversy and the disposal of the suit long thereafter also not being in controversy, the evidence of the mediators also may have to be appreciated in this backdrop and accordingly the findings recorded by the trial Court to be set aside. The Counsel also would maintain that in the event of this Court accepting the said contentions, the Appeal filed as against granting of mesne profits also may have to be allowed. Incidentally, the Counsel pointed out that even otherwise, the findings recorded by the learned Senior Civil Judge, Gudivada, while deciding the mesne profits also are unsustainable findings since the evidence had not been appreciated in proper perspective. The learned Counsel also placed strong reliance on several decisions to substantiate his contentions.

Contentions of Sri T.S. Anand : Sri T.S. Anand, the Counsel representing the respondent in all these Appeals in all emphasis had pointed out that the contract of sale itself had stipulated time as the essence of the contract. The Counsel would maintain that even if normally the time not to be treated as the essence of contract in case of immovable property, the same can be made the essence of contract by putting the opposite party on notice. The Counsel would maintain that this was done by the respondent and having received the same, the opposite party had slept over the matter. The alleged mediation and the evidence adduced in this regard had been disbelieved even by the trial Court. The evidence recorded by the trial Court are well considered findings in this regard. Hence the said findings are to be confirmed. When that being so, since time to be treated as essence of contract, inasmuch as the opposite party was not ready and willing to perform his part of the contract, the relief of specific performance was negatived by recording convincing reasons and at any rate the relief of recovery of possession had been granted. The relief of mesne profits also had been granted taking into consideration the evidence available on record. Hence the said findings cannot be found fault in any way. While elaborating his submissions, the learned Counsel incidentally pointed out to the conduct of the parties and also would maintain that the respondent has nothing to do with the alleged assignment if any. Even otherwise, the respondent is not bound by any such understanding in this regard in between the opposite parties. The Counsel also would maintain that the mere pendency of the suit as against certain of the third parties who claimed some right of way would not in any way enure to the benefit of the other parties to contend otherwise since the conduct being clear that the opposite parties had been never ready and willing to perform their part of the contract. The learned Counsel also placed strong reliance on certain decisions and would maintain that in the light of the convincing reasons recorded by the trial Court, the said findings to be confirmed.

In the light of the contentions advanced by the respective Counsel referred to supra, the following Points arise for consideration in these Appeals:

Whether the relief of recovery of possession and the other reliefs granted in O.S. No. 259/84 be sustained or liable to be set aside in the facts and circumstances of the case?

Whether the relief of specific performance prayed for in O.S. No. 30/85 which was negatived by the trial Court to be sustained or liable to be set aside in the facts and circumstances of the case?

Whether the findings recorded by the trial Court in the Common Judgment in O.S. No. 259/84 and O.S. No. 30/85 on the file of Subordinate Judge, Gudivada to be confirmed or to be disturbed in the facts and circumstances of the case?

Whether the order made in I.A. No. 823/95 in O.S. No. 259/84 to be confirmed or to be set aside in the facts and circumstances of the case?

If so, to what relief the parties would be entitled to?

Point Nos. 1 to 4 : These Points are being discussed together for the purpose of avoiding the repetition of the recording of findings.

The short episode of this litigation between the parties already had been referred to supra in nutshell. Except the 2nd plaintiff in O.S. No. 30/85 being an additional party claiming by virtue of assignment, substantially, the parties are the same in all these litigations and the subject matter also is one and the same. The reliefs prayed for in O.S. No. 259/84 are for recovery of possession of the plaint schedule property after ejecting the defendants and for future profits and interest from the date of plaint till recovery of possession and for costs. The reliefs prayed for in O.S. No. 30/85 on the file of Subordinate Judge, Gudivada are as hereunder:

For specific performance of the suit contract dated 29-9-1982 read with the agreement arrived at on 11-12-1983 in favour of the plaintiffs:

(a) directing the defendant to execute and register a sale deed in favour of the 1st plaintiff for an extent of Acs. 5-70 cents in the suit land i.e., the Southern portion together with motor pump set therein at the 1st plaintiff''s expense on receiving the proportionate balance of sale consideration due and payable by him with interest at 12% per annum from the date of the contract till 31-8-1984;

(b) and further directing the defendant to execute and register a proper sale deed in favour of the 2nd plaintiff for an extent of Acs.5-70 cents in the suit land on the North at the expense of the 2nd plaintiff on receiving proportionate balance and sale consideration for the said extent of Acs.5-70 cents with interest at 12% per annum from the date of the contract till 31-8-1984;

OR

In the alternative directing the defendant to execute and register a single sale deed for the entire suit land together with motor and pump set therein in favour of the 1st plaintiff at the expense the entire balance of sale consideration with interest at 12% per annum from the date of the suit contract till 31-8-1984, if it is going to be held that the 2nd plaintiff is not entitled to have a sale deed executed in his favour as prayed for, or if the defendant does not choose to perform his part and to execute and register as prayed for, directing that sale deeds or sale deed as prayed for be got executed and registered by the Hon''ble Court in favour of both the plaintiffs or in the alternative in favour of the 1st plaintiff alone for the suit property at their expense, and for costs of the suit and such other reliefs as the Hon''ble Court deems proper and necessary in the circumstances of the case.

The respective pleadings of the parties in these suits are as hereunder. It was averred in the plaint in O.S. No. 259/84 as hereunder:

The 1st defendant agreed to purchase the schedule land belonging to the plaintiff for a bilmaktha sale consideration of Rs. 85,500/- at Rs. 7500/- per acre and plaintiff agreed to sell the schedule land to the 1st defendant at that rate. It was further pleaded that on 29-9-1982, the 1st defendant paid the plaintiff towards earnest an amount of Rs. 25,500/- and it was agreed that the 1st defendant should pay the balance of sale consideration of Rs. 60,000/- within two months from 29-9-1982 and that the plaintiff should execute a sale deed with proper terms in favour of the 1st defendant or his nominee at the expenses of the 1st defendant. It was further agreed that the 1st defendant should also pay interest at 12% per annum on the balance of sale consideration of Rs. 60,000/- from 29-9-1982 within two months from that date i.e., within 29-11-1982. Thus time was made the essence of the contract and the 1st defendant should perform his part of the contract by payment of the balance of sale consideration of Rs. 60,000/- with interest at 12% per annum from 29-9-1982 within two months thereafter. The plaintiff delivered possession of the schedule property to the 1st defendant on 29-9-1982 and since then the 1st defendant had been in possession and enjoyment of the schedule land. It was further pleaded that with these and other terms, the plaintiff executed an agreement of sale in favour of the 1st defendant on 29-9-1982 but no counter part of the agreement was executed by the 1st defendant in favour of the plaintiff. It was further pleaded that the 1st defendant made a payment of Rs. 30,000/- out of the balance of sale consideration to the plaintiff on 10-10-1982 and the plaintiff endorsed payment of the said amount on the agreement of sale in his own handwriting and signed it on 10-10-1982. Thus the 1st defendant made a total payment of Rs. 55,500/- out of Rs. 85,500/- and did not pay till now either the balance of Rs. 30,000/- or interest and defaulted to perform his part of the contract in spite of repeated demands of the plaintiff to pay the balance of sale consideration with interest and obtain the sale deed from the plaintiff. It was also further pleaded that the plaintiff was always ready and willing to perform his part of the contract at all material times but the 1st defendant defaulted to perform his part of the contract, both before the stipulated date namely 29-11-1982 or thereafter till now. The 1st defendant could not get the balance of sale consideration ready and therefore failed to pay the same to the plaintiff and failed also to obtain the sale deed from the plaintiff and thus caused breach of the terms of the suit agreement of sale. It was also further pleaded that there is a well and a bore in the schedule land and there is also a motor and pump set for the said bore belonging to the plaintiff. The plaintiff did not sell the motor and the pump set to the 1st defendant and they are not the subject matter of the sale. The 1st defendant requested the plaintiff on the date of the agreement of sale that he may be permitted to use the motor and pump set till 29-11-1982 and that he would make alternative arrangements before that time to acquire another motor and pump set within that time. In all bona fides, the plaintiff believed the representations of the 1st defendant and agreed to allow him to use the motor and the pumpset till 29-11-1982 as otherwise he would not be able to raise the crops in the schedule lands and consequently he may be a loser. The 1st defendant failed to deliver back the motor and the pump set as agreed upon either before 29-11-1982 or till now and he had been utilizing the same unlawfully. It was also further pleaded that the schedule land is a fertile land and it yields vegetables and commercial crops and the 1st defendant had been realizing good amount of income on the schedule land. The 1st defendant is taking undue advantage of the fact that he is in possession of the schedule land and that he had been realizing a heavy amount of income and at the same time failed to pay the balance of sale consideration and caused breach of the contract and the 1st defendant is liable to pay not less than Rs. 30,000/- towards damages for breach of the contract. It was further pleaded that while the matters stood thus, the 1st defendant approached the plaintiff on 7-8-1983 and informed him that he was making preparations to pay the balance of sale consideration, that he would also pay interest at 12% per annum positively before the end of the year 1983 and that Sri Kakani Rama Rao, Sri Tiyyagura Adinarayana Reddi and Kakani Ramakrishnayya were making attempts to form a cart track in the schedule land from the main road and through the land of Tiyyagura Adinarayana Reddi and that he was advised by his Advocate at Gannavaram that himself and the plaintiff would file a suit for permanent injunction restraining the said Kakani Rama Rao etc., for the formation of any cart track through the plaint schedule land. The plaintiff believed the said representation of the 1st defendant and agreed to file the suit for the said reliefs along with the 1st defendant and subsequently both the 1st defendant and the plaintiff arrayed themselves as plaintiffs and filed the suit O.S. No. 106/83 on the file of District Munsif, Gannavaram for the aforementioned reliefs, but the 1st defendant failed to fulfill his obligation of payment of balance of sale consideration with interest before December 1983. Thereafter the plaintiff was very much disturbed with the attitude of the 1st defendant and very much afraid that if the electrical service connection number 62 continued to be in the possession of the 1st defendant, the 1st defendant may not even pay the electrical charges and the electricity department would naturally collect the amount from the plaintiff as he is the real owner of the service and therefore submitted a petition to the Assistant Engineer, Andhra Pradesh State Electricity Board, Hanuman Junction to disconnect the service. Thereafter the 1st defendant got a registered notice issued through his Advocate Sri P.N. Rayudu of Gannavaram both to the plaintiff and to the Assistant Engineer, A.P.S.E.B. on 7-6-1984 with a false statement of facts and particularly that the 1st defendant took possession of the schedule land with the motor and pump set as if the motor and the pump set are also part of the property covered by the agreement of sale.

The Assistant Engineer was also informed that he would sustain a loss of Rs. 15,000/- to Rs. 20,000/- being the value of the crops raised by him in case the service is disconnected. After receiving the said notice, the plaintiff issued a reply registered notice to the 1st defendant on 22-6-1984 with true copies marked to the Advocate of Sri P.N. Rayudu and also to the Assistant Engineer, A.P.S.E.B., Hanuman Junction. The plaintiff made it clear in the said reply registered notice that the motor and pump set were not agreed to be sold that they are not part of the property covered by the agreement of sale, that the 1st defendant already harassed the plaintiff by non-payment of balance of sale consideration and that the 1st defendant should deliver motor and the pump set within 15 days from the date of the sale notice and that the 1st defendant should also pay the balance of sale consideration with interest together with damages for breach of the contract and that he should obtain the sale deed from him. It was also further pleaded that the 1st defendant received the said notice but did not issue any reply and did not also pay the balance of sale consideration with interest and did not also pay damages for breach of the contract. Thus the 1st defendant persisted in default to pay the balance of sale consideration in spite of several demands made by the plaintiff and several opportunities were given to him to perform his part of the contract. Under the said circumstances the plaintiff wanted to give one more opportunity to the 1st defendant for payment of the balance of sale consideration with interest and damages for breach of the contract of Rs. 30,000/- and got a registered notice issued to the 1st defendant through his Advocate Sri T.V.Sarma, Gudivada on 14-8-1984 once again making the time the essence of contract and gave him 15 days time for payment of the balance of sale consideration, interest and damages for obtaining the sale deed. Thus time was given to the 1st defendant till 31-8-1984 for performing his part of the contract. The 1st defendant received the said notice on 16-8-1984, but did not comply with the demand and did not also pay the amount claimed and thus once again claimed caused breach of the contract. It was also further pleaded that time was the essence of contract as agreed upon between the plaintiff and the 1st defendant when the suit agreement of sale was entered into on 29-9-1982 and the 1st defendant caused breach of the terms of the agreement having failed to pay the balance of sale consideration with interest before 29-11-1982. Subsequently also he failed to pay the balance of sale consideration and the only payment made by him was Rs. 30,000/- on 10-10-1982, which was endorsed on the agreement of sale. While issuing the first registered notice on 14-8-1984, the plaintiff made it clear to the 1st defendant that time again was made the essence of contract and if the 1st defendant fails to pay the balance of sale consideration of Rs. 30,000/- with interest and also the damages for breach of the contract of Rs. 30,000/- within 31-8-1984, the agreement of sale would become cancelled and the earnest amount of Rs. 25,500/- paid on 29-9-1982 and the amount of Rs. 30,000/- paid on 10-10-1982 would be lost by the 1st defendant and would be forfeited to the plaintiff and that the 1st defendant would be liable to deliver possession of the schedule property to the plaintiff and that he would also be liable to pay profits to the plaintiff. As the 1st defendant again caused breach of the contract though time was made the essence of contract, the agreement of sale has become cancelled and the 1st defendant is liable to deliver possession of the schedule property to the plaintiff and he is also liable to pay profits from the date of the plaint till delivery of possession. The suit is therefore filed for the main relief of delivery of possession of the schedule property with profits and in case the Hon''ble Court holds that the main relief cannot be granted to the plaintiff for the alternative relief of recovery of balance of sale consideration of Rs. 30,000/- with interest at 12% per annum from 19-9-1982 together with damages for breach of the contract of Rs. 20,000/- with a first charge on the schedule property and for costs. It was also further pleaded that the plaintiff would take necessary legal action for taking delivery of the pump set and the motor in their original conditions from the defendants together with damages for use and occupation at Rs. 300/- per month from 29-11-1982 as it arises for a separate cause of action, the said relief is not claimed in the present suit. It was also further pleaded that the 1st defendant died on 23-10-1991 and his legal representatives namely his sons-defendants 2 and 3, his wife-4th defendant and his daughter-5th defendant were added as his legal representatives as per orders in I.A. No. 1390/91 dated 21-1-1992. The defendants 2 to 4 are in possession of the estate of the 1st defendant and they represent his estate. The plaintiff became entitled to recover the suit amount from the defendants 2 to 5 and therefore the defendants 2 to 5 are proper and necessary parties to the suit.

The defendant filed the written statement with the following averments: It was pleaded that it is true that the defendant contracted to purchase the plaint schedule land with the plaintiff for a total sale consideration of Rs. 85,500/- at Rs. 7500/- per acre under a contract of sale dated 29-9-1982. The defendant paid an earnest money of Rs. 25,000/- on the same day and another sum of Rs. 30,000/- on 10-10-1982 towards the sale consideration. The plaintiff delivered possession of the plaint schedule land to the defendant on 29-9-1982, the date of the contract of sale and ever since he is continuing in possession thereof. The land was pasture land with English babul trees etc., and uneven. The defendant spent an amount of over Rs,10,000/- for clearing the same towards reclamation and repairing the borewell etc., for cultivation. During 1983-84, the defendant could not transplant paddy in the entire extent as an extent of about Acs.5-00 cents was uneven and could not be brought under cultivation. With great difficulty in spite of his best efforts on his part the land yielded only 55 bags of paddy on the whole and therefore he incurred heavy loss and even the attempts to grow vegetables failed and there was no yield. The motor and the pump set formed part of the bargain and included in the sale transaction though an express recital was not made in the contract. The schedule wherein the motor and pump set should have been included as usual, but as the writer copied the schedule from a sale certificate supplied by the plaintiff which does not make mention of motor and the pumpset, they were not impleaded in the schedule land. The defendant was under the impression that they were impleaded. It was further pleaded that as a formed part of the bargain from the inception of the negotiations, the defendant believed that the contract included them also. The land is a dry land and the defendant would not have bargained to purchase it without motor and the pump set as it is not possible to irrigate the land otherwise. It is not true to allege that the plaintiff permitted the defendant at the later''s request to use the motor and the pump set till registration of the sale deed on condition that he should deliver the same to the plaintiff. The plaintiff delivered on the other hand the same to the defendant along with the land as they formed part of the bargain and the defendant had been yielding the same and using them as of a right. The allegations contra in the plaint as well as in the notices prior to the suit are not true and correct. It was also further pleaded that it is not true to allege that time was agreed to be the essence of contract or that the defendant committed breach and had not paid the balance of the sale consideration in time and that he is liable to pay damages of Rs. 30,000/- or that in addition the defendant is liable to pay damages at Rs. 300/- per month from user of the motor and the pump set. The allegations in particular in paras 7 and 8 are not true and correct. The defendant never agreed to redeliver the motor and the pump set to the plaintiff. It was also further pleaded that the plaintiff represented and asserted that there were no encumbrances in the suit land and nobody including the neighbours had any right of way, channel or any other easement or other right over the schedule land and so saying he inducted the defendant to enter into the contract of sale and the defendant honestly believed his representations in entering into the contract. Subsequently some persons claimed and asserted a right of way on the suit land and therefore the plaintiff and the defendant having taking necessary advise got filed O.S. No. 106/83 on the file of District Munsif, Gannavaram on 9-9-1983 against Kakani Rama Rao, P.Adireddi and K.Ramakrishnaiah for a permanent injunction and other reliefs in that respect. It was also further pleaded that they are contending that they have right of way on the suit land contrary to the representations of the suit. The version given at para-8 of the plaint in that regard is not true and correct. After filing of the said suit the plaintiff and the defendant, as advised by the mediators one Motukuru Adinarayana, Sunkara Sreerama Murthy, Sureddi Ramakrishnaiah and Dr. Ch. Venkateswara Rao came to an arrangement on 11-12-1983 to the effect that the completion of the sale transaction be postponed till at least the end of December 1984 and that the balance of sale consideration be paid in the first week of January1985 as both the parties and the mediators had a hope that the litigation in all reasonableness might come to an end in the first court at least in their favour in the month of December 1984. The plaintiff further undertook to obtain Income Tax Clearance Certificate meanwhile to facilitate execution and registration of a proper sale deed in favour of the defendant. Thus, both the parties agreed for postponing the balance of sale consideration with interest as well as the performance of the contract by either parties till the disposal of the suit i.e., O.S. No. 106/83. The plaintiff had suppressed the said arrangement and agreement to postpone the performance by either parties., i.e., the plaintiff and the defendant. It was also further pleaded that it is not true to allege that the defendant undertook to pay the balance of sale consideration with interest by the end of 1983 and in spite of his demands, the defendant failed to pay and to perform his part of the contract. While so, the plaintiff had wrongfully got disconnected the electricity service connection for the motor without the knowledge of the defendant and made it impossible for the defendant to have supply of water for the crops transplanted in August 1984 and the crop withered away resulting a loss to the defendant. It is with great difficulty that the defendant could get a different service connection subsequently. The defendant incurred loss to the tune of Rs. 5000/- on account of the wrongful act of the plaintiff towards damage to the crop and the yield which the plaintiff is liable to pay to him. It is not true to allege that the plaintiff had apprehension about the payment of the consumption charges by the defendant and therefore he got the service connection removed by the authorities. It is true that the defendant got a notice issued to the A.P.S.E.B. as he apprehended some trouble from the plaintiff with regard to the motor and the pump set. The plaintiff got issued notices with false and untenable allegation to which the defendant got a reply issued dated 22-9-1984, can be seen from the foregoing that the defendant was not guilty of breach in any respect and that the plaintiff himself committed breach in giving a go bye in the agreement arrived at on 11-12-1983 read with the suit contract and also by causing the service connection disconnected wrongfully in order to cause loss and damage to the defendant. Till the suit O.S. No. 106/83 came to an end in their favour, the defendant is not obliged to pay the balance of sale consideration to the plaintiff. The defendant is also not obliged to redeliver the motor and the pump set or any damages to the plaintiff. It was also further pleaded that the allegations in para-9 of the plaint are also not true and correct. The plaintiff is not entitled to make time essence of contract after the parties agreed to postpone the performance till the termination of the said suit in their favour and the plaintiff is bound to wait for a reasonable time. In getting the notices issued with false and untenable pleas and also claiming redelivery of motor and pumpset and damages etc., and also in canceling the suit contract and claiming forfeiture of the earnest money of Rs. 25,500/- as the other amount of Rs. 30,000/- paid towards sale consideration all tantamount to unlawful and vindictive breach of the suit contract by the plaintiff which is not entitled to do. The defendant had not agreed for termination of the suit contract for any reason and he had kept and is keeping the suit contract alive and he is ready and willing to perform his part by payment of balance of sale consideration etc., as agreed on 11-12-1983. The plaintiff was never ready and willing to perform his part of the contract and on the other hand he was inclined to harass and cause wrongful loss to the defendant. The plaintiff is not entitled to redelivery of the suit land or any profits therein. He is also not entitled to claim the balance of sale consideration with interest much less damages for the alleged breach as estimated and claimed in the plaint. The plaintiff had not suffered any loss or damage for any reason and on the other hand it is the defendant that had suffered loss of yield and other expenditure on account of the disconnection of the service at the instance of the plaintiff and he is not entitled to any of the reliefs claimed. It was also further pleaded that the plaintiff''s suit is premature and not maintainable and he is estopped from filing the suit on account of arrangement arrived at on 11-12-1983 which has to be read as part and parcel of the suit contract. It was further pleaded that the defendant is ready and willing to abide by the said arrangement in performing his part. In case however the suit O.S. No. 106/83 is going against the plaintiff and the defendant and right of way for the defendants therein is going to be upheld, the suit contract will be frustrated or become unenforceable at the option of the defendant and the plaintiff will have to pay reasonable damages and also return the earnest money as well as the amount of Rs. 30,000/- paid towards the sale consideration with interest besides damages to the extent of Rs. 5000/- incurred by the defendant on account of disconnection of the power by the plaintiff. It was also further pleaded that the defendant had assigned all his rights and liabilities under the suit contract read with the arrangement with respect of Acs.5-70 cents of the suit land dated 11-12-1983 to one Chanumolu Prakasa Rao, s/o. Subbaiah under an assignment dated 9-11-1984 and delivered possession of the said extent to the assignee and as such the defendant and the said assignee are continuing in possession and enjoyment of their respective extents and they are entitled to enforce the assignment and claim specific performance of the suit contract read with the arrangement dated 11-12-1983 by the plaintiff according to law to wither with all other available reliefs for which they reserve their right to file a separate suit. The present suit is premature and not maintainable at all and the plaintiff is not entitled to any relief.

It is needless to say that the averments made in the plaint in O.S. No. 30/84 are substantially the same as the averments made in the written statement referred to supra, except for certain additional facts relating to the assignment made in favour of the 2nd plaintiff Chanumolu Prakasa Rao. The averments made in the plaint in O.S. No. 30/85 are as hereunder:

The 1st plaintiff contracted to purchase the plaint schedule land together with an entire motor and pump set therein with the defendant for a total consideration of Rs. 85,500/- ascertained at Rs. 7500/- per acre under a contract of sale dated 29-9-1982. The 1st plaintiff paid an earnest money of Rs. 25,500/- on the same day at the time of entering into the contract. Subsequently he paid another amount of Rs. 30,000/- to the defendant on 10-10-1982 towards the sale consideration and endorsed on the sale contract. The defendant delivered possession of the plaint schedule land together with motor and pump set therein to the 1st plaintiff on the date of the suit contract itself and ever since he had been continuing in possession and enjoyment thereof. It was an uneven pasture land with English Babul trees etc. The 1st plaintiff had spent an amount of over Rs. 10,000/- for clearing the Babul trees and other shrubs for reclamation and repairing the borewell therein for his cultivation. During 1983-84, he could not transplant paddy in the entire extent as an extent of about Acs.5-00 was very uneven and could not be brought under cultivation. Though he had invested huge amounts, with great difficulty in spite of his best efforts, the land did not yield more than 55 bags of paddy on the whole and therefore he incurred heavy loss and his attempts to grow vegetables also failed as there was no yield. The Motor and pump set in the suit land formed part of the bargain and it was included in the sale transaction though an express recital was not made in the contract. The writer of the contract copied the schedule from a sale certificate supplied by the defendant which does not make a mention of the motor and the pumpset and therefore inadvertently they were not included in the schedule along with the land. The 1st plaintiff was under an impression that they were so included and mentioned in the schedule. As they formed part of the bargain from the inception of the negotiation, the 1st plaintiff had been under a bona fide belief that the contract covered them also. The suit land is a dry land and the 1st plaintiff would not have bargained to purchase it without motor and the pumpset and it is not possible at all to irrigate the suit land otherwise. The defendant delivered the motor and the pump set also to the 1st plaintiff along with the suit land and he had been using the same as of right. It was also further pleaded that as usual, time was not made the essence of contract. The defendant was representing from the beginning and asserting that there were no encumbrances on the suit land and none else including the neighbours had any right of way, channel or any other easement or other rights over the same and so saying he inducted the 1st plaintiff to enter into the contract and the 1st plaintiff believed his representations and entered into the contract to purchase. Subsequently some persons claimed and asserted a right of way therein and therefore the 1st plaintiff and the defendants had filed O.S. No. 106/83 on the file of the District Munsif, Gannavaram on 9-9-1983 against Kakani Rama Rao, P.Adireddi and K.Ramakrishnaiah for a permanent injunction and other reliefs against them and they are contending that they had a right of way in the suit land contrary to the representations of the defendant and the recitals in the contract. After filing of the said suit, the 1st plaintiff and the defendant as advised by mediators Motukuru Adinarayana, Sunkara Sreerama Murthy and T.Ramakrishnaiah and Dr. Ch.Venkateswara Rao came to an arrangement on 11-12-1983 to the effect that the completion of the sale transaction should be postponed till at least the end of December 1984 and that the balance of sale consideration be paid in the first week of January 1985 as both parties and the mediators had then a hope that the said litigation in all reasonableness might come to an end in the trial Court at least in their favour by them. The defendant undertook to obtain an income tax clearance certificate to facilitate executions and registration of a proper sale deed in favour of the 1st plaintiff or his nominee. Thus the parties to the contract by mutual consent and agreement extended the period stipulated in the contract for performance by either party. It is recited in the contract that the 1st plaintiff should pay the balance of sale consideration of Rs. 60,000/- with interest at 12% per annum to the defendant within two months from the date of the contract and have a sale deed executed and registered at his expense. As already stated the 1st plaintiff subsequently paid a sum of Rs. 30,000/- as early as on 10-10-1982 itself prior to the filing of the suit O.S. No. 106/83. Under the said circumstances, as the said suit was not disposed of and the dispute raised by the defendants therein is continuing and as the peaceful possession and enjoyment of the suit land was threatened and is being threatened by the defendants therein and as further the defendant is not in a position to execute and register a sale deed including statutory covenants for undisputed title and peaceful possession and enjoyment of the suit land and as both parties to the contract therefore agreed to postpone the payment of the balance of the amount payable under the contract by the 1st plaintiff as well as the performance of his party by the defendant viz., execution and registration of the sale deed had been postponed, the transaction could not be completed for no fault of the 1st plaintiff. The 1st plaintiff had been under the impression that the defendant could abide by the contract as well as the arrangement arrived at on 11-12-1983 with the mediation of the elders and would perform his part subsequently. While so, the defendant had wrongfully got disconnected the electricity service connection for the motor in the suit land without the knowledge of the 1st plaintiff and made it impossible for him to have supply of water for the crops transplanted in August 1984 and the crops withered away resulting in heavy loss to the 1st plaintiff. However with great difficulty, he could get a different service connection subsequently. The 1st plaintiff incurred loss to a tune of Rs. 5000/- on account of the wrongful acts of the defendant and he is therefore liable to reimburse the 1st plaintiff for the loss and damage caused to him and the 1st plaintiff reserves his right to institute necessary proceedings in that respect. The defendant got issued registered notices with false and untenable allegations to the 1st plaintiff who got a reply dated 22-9-1984 issued. The defendant is acting in collusion with the defendants in O.S. No. 106/83 in order to cause wrongful loss to the 1st plaintiff. The claims and contentions of the defendant in the registered notices that the 1st plaintiff committed breach of the contract, that the motor and pump set did not form part of the bargain and that the 1st plaintiff is liable to pay damages to the defendant and that the defendant is entitled to forfeit the earnest money and the other amount of Rs. 30,000/- paid by the 1st plaintiff and similar other claims of the defendant are neither genuine nor valid nor tenable. It was also further pleaded that the 1st plaintiff was and had always been ready and willing to pay the entire amount payable under the contract to the defendant and take a sale deed executed and registered by the defendants at his expense. The 1st plaintiff had not violated any terms and conditions of the contract and he had not at all committed breach of the contract as alleged by the defendant in his notices. As already stated the period for performance of the contract by either party had been extended by mutual consent and the agreement. However, the 1st plaintiff had been expressing to the defendant his readiness and willingness to perform his part in the terms of the suit contract, but the defendant had been evading to do so and evidently was not inclined to perform his part. He had precipitated matters and committed breach by his conduct in getting electricity service connection disconnected in collusion with the defendants in O.S. No. 106/83 and in getting notices issued to the 1st plaintiff with false and untenable allegations and claims purporting to terminate the contract wrongfully, but the 1st plaintiff had not accepted the intended termination and breach of the contract and on the other hand he wants as before to have the contract performed in full by completion of the sale transaction. The defendant had further aggravated the matters by filing O.S. No. 259/84 against the 1st plaintiff claiming damages for the alleged breach of the contract and claiming the entire amount of Rs. 55,000/- paid by the 1st plaintiff by forfeiture which he is not entitled to do and he had claimed other reliefs also against the 1st plaintiff. The 1st plaintiff had filed his written statement on or about 15-1-1985 denying all the claims of the defendant. Thus the defendant is not inclined to perform his part without any justifiable reasons though the 1st plaintiff had always been ready and willing to perform his part. It was also further pleaded that the 1st plaintiff had assigned his rights and liabilities under the contract read with the arrangement arrived at on 11-12-1983 with regard to the extension of time for performance in favour of the 2nd plaintiff with respect to the Northern side Acs.5-70 cents in the suit land and delivered possession of the said extent to the assignee i.e., the 2nd plaintiff under an assignment deed dated 9-11-1984. The 2nd plaintiff is continuing in possession and enjoyment of the said extent and by virtue of the assignment he is entitled to claim specific performance of the contract in his favour and he is therefore impleaded as the 2nd plaintiff. The 1st plaintiff is agreeable for executing and registering a proper sale deed in favour of the 2nd plaintiff for the extent of Acs.5-70 cents covered by the assignment deed. The 2nd plaintiff is agreeable to pay the proportionate amount payable for that extent to the defendant as per the terms of the contract. The 1st plaintiff is agreeable to pay the balance for the remaining extent and take a sale deed in his favour. Alternatively, the plaintiffs are agreeable for execution and registration of a sale deed in favour of the 1st plaintiff even. As per the recitals in the contract the defendant is bound to execute and register a sale deed or sale deeds either in favour of the plaintiff or in favour of his nominees and therefore he cannot have any valid objection for execution of the two separate sale deeds in favour of the plaintiffs for the extents and he is only concerned with the receipt of the balance of sale consideration. Under the circumstances, as the defendant had not been co-operating with the plaintiffs and is not inclined to perform his part, the 1st plaintiff had always been ready and willing to perform his part of the contract and pay the balance of sale consideration and as the defendant had got the electricity service connection disconnected maliciously in violation of the contract he is not entitled to any interest from 1-9-1984. The defendant is entitled for Rs. 36,300/- with interest. The plaintiffs are ready and willing to deposit the balance of sale consideration into Court whenever ordered by the Court or if the defendant wants it to be so deposited. For that purpose, the plaintiffs deposited an amount of Rs. 38,800/- into the account of their Counsel at Allahabad Bank, Governorpet, Vijayawada-2. It was also further pleaded that the defendant is liable to obtain income tax clearance certificate as it is required under Law for registration of a sale deed by him. The plaintiffs are seeking specific performance of the suit contract read with the arrangement entered into on 11-12-1983. While so, when the 1st plaintiff was watering the suit land on 17-2-1985, the defendants in O.S. No. 106/83 and some others came in unlawful assembly and abused the 1st plaintiff in foul language and beat him and caused him injuries. The persons who witnessed the incident came and took him to his house on a cart. Thereupon, the 1st plaintiff gave a complaint to the police i.e., S.H.O. Veeravalli on 17-2-1985 itself stating in detail the wrongful acts committed by them and the case is pending investigation. They are inclined to cause bodily harm to the 1st plaintiff besides damage to the suit land though they had no right whatsoever to interfere with the suit land. However, the plaintiffs are seeking specific performance of the contract for which the suit is being filed. The defendant is bound to undertake by necessary covenants and recitals for title and peaceful possession and enjoyment of the suit land in the sale deed or sale deeds to be executed by him according to Law and according to the suit contract and the plaintiffs reserve their right to enforce such covenants and rights available to them under Law.

The averments made in the written statement in O.S. No. 30/85 are substantially the same as the averments made in the plaint in O.S. No. 259/84 and the said averments are as hereunder:

It was pleaded that it is absolutely false to state that the 1st plaintiff contracted to purchase the plaint schedule land together with an entire motor and pump set therein with the defendant. The defendant submits that the 1st plaintiff agreed to purchase the schedule land belonging to the defendant for a bilmaktha sale consideration of Rs. 85,500/- at Rs. 7500/- per acre and the defendant agreed to sell the schedule land to the 1st plaintiff at that rate. On 29-9-1982 the 1st plaintiff paid the defendant towards earnest an amount of Rs. 25,500/- and it was agreed that the plaintiff should pay the balance of sale consideration of Rs. 60,000/- within two months from 29-9-1982 and that the defendant should execute a sale deed with proper terms in favour of the 1st plaintiff or his nominee at the expenses of the 1st plaintiff. It was also further agreed that the 1st plaintiff should also pay interest at 12% p.a. on the balance of sale consideration of Rs. 60,000/- from 29-9-1982 within two months from the date i.e., within 29-11-1982 and thus time was made the essence of contract and the 1st plaintiff should perform his part of the contract by payment of the balance of sale consideration of Rs. 60,000/- with interest at 12% p.a. from 29-9-1982 within two months thereafter. The defendant delivered possession of the schedule property to the 1st plaintiff on 29-9-1982 and since then the 1st plaintiff had been in possession and enjoyment of the schedule land. With these and other terms, the defendant executed an agreement of sale in favour of the 1st plaintiff on 29-9-1982 but no counter part of the agreement was executed by the 1st plaintiff in favour of the defendant. It was also further pleaded that the 1st plaintiff made a payment of Rs. 30,000/- out of the balance of sale consideration to the defendant on 10-10-1982 and the defendant endorsed payment of the said amount on the agreement of sale in his own handwriting and signed it on 10-10-1982. The 1st plaintiff made a total payment of Rs. 55,000/- out of Rs. 85,500/- and did not pay till now either the balance of Rs. 30,000/- or interest and defaulted to perform his part of the contract in spite of repeated demands of the defendant to pay the balance of sale consideration with interest and obtain the sale deed from the defendant. It was also further pleaded that the defendant was always ready and willing to perform his part of the contract at all material times, but the 1st plaintiff defaulted to perform his part of the contract, both before the stipulated date, namely, 29-11-1982 or thereafter till now. It was also further pleaded that the 1st plaintiff could not get the balance of sale consideration ready and therefore failed to pay the same to the defendant and failed also to obtain the sale deed from the defendant and thus caused breach of the terms of the suit agreement of sale. It was also pleaded that there is a well and a bore in the schedule land and there is also a motor and pump set for the said bore belonging to the defendant and the defendant did not sell the motor and pump set to the 1st plaintiff and they are not the subject matter of the sale. The 1st plaintiff requested the defendant on the date of the agreement of sale that he may be permitted to use the motor and pump set till 29-11-1982 and that he would make alternative arrangements before that time to acquire another motor and pumpset within that time. In all bona fides, the defendant believed the representations of the 1st plaintiff and agreed to allow him to use the motor and the pump set till 29-11-1982 as otherwise the 1st plaintiff would not be able to raise the crops in the schedule lands and consequently he may be a loser. The 1st plaintiff failed to deliver back the motor and pump set as agreed upon either before 29-11-1982 or till now and he had been utilizing the same unlawfully. The schedule land is a fertile land and it yields vegetables and commercial crops and the 1st plaintiff had been realizing a good amount of income on the schedule land. The 1st plaintiff is taking undue advantage of the fact that he is in possession of the schedule land and that he had been realizing a heavy amount of income and at the same time failed to pay the balance of sale consideration and caused the breach of the contract. The 1st plaintiff is liable to pay not less than Rs. 30,000/- towards damages for breach of the contract. It was further pleaded that while matters stood thus, the 1st plaintiff approached the defendant on 7-8-1983 and informed him that he was making preparations to pay the balance of sale consideration and that he would also pay interest at 12% p.a. positively before the end of the year 1983 and that Sri Kakani Rama Rao, Sri Tiyyagura Audinarayana Reddi, Sri Kakani Ramakrishnayya were making attempts to form a cart track in the schedule land from the main road and through the land of Tiyyagura Adinarayana Reddi and that he was advised by his advocate at Gannavaram and that himself and the defendant would file a suit for permanent injunction restraining the said Kakani Rama Rao etc., for the formation of any cart track through the plaint schedule land in the suit proposed to be filed and the defendant again believed the said representation of the 1st plaintiff and agreed to file the suit for the said reliefs along with the 1st plaintiff and consequently both the 1st plaintiff and the defendant arrayed themselves as plaintiffs and filed the suit O.S. No. 106/83 on the file of District Munsif, Gannavaram for the aforementioned reliefs but the 1st plaintiff failed to fulfill his obligation of payment of the balance of sale consideration with interest before December 1983. Thereafter the defendant was very much disturbed with the attitude of the 1st plaintiff and very much afraid that if the electrical service connection number 62 continued to be in the possession of the 1st plaintiff, the 1st plaintiff may not even pay the electrical charges and the electricity department would naturally collect the amount from the defendant as he is the real owner of the service and therefore submitted a petition to the Assistant Engineer, A.P.S.E.B., Hanuman Junction to disconnect the service. It was further pleaded that thereafter the 1st plaintiff got a registered notice issued through his Advocate Sri P.N.Rayudu of Gannavaram, both to the defendant and to the Assistant Engineer, A.P.S.E.B. on 7-6-1984 with a false statement of facts and particularly that the 1st plaintiff took possession of the schedule land with the motor and pump set as if the motor and pump set are also part of the property covered by the agreement of sale. He also informed the Assistant Engineer that he will sustain loss of Rs. 15,000/- to Rs. 20,000/- being the balance of the crops raised by him in case the service is disconnected. After receiving the said notice, the defendant issued reply registered notice to the 1st plaintiff on 22-6-1984 with true copies marked to the Advocate Sri P.N. Rayudu and also to the Assistant Engineer, A.P.S.E.B., Hanuman Junction. The defendant made it clear in the said reply registered notice that the motor and pump set were not agreed to be sold and they are not part of the property covered by the agreement of sale and the 1st plaintiff already harassed the defendant by non-payment of the balance of sale consideration and that the 1st plaintiff should deliver the motor and the pump set within 15 days from the date of the said notice and that the 1st plaintiff should also pay the balance of sale consideration with interest together with damages for breach of the contract and that he should obtain the sale deed from him. It was also pleaded that the 1st plaintiff received the said notice, but did not issue any reply and did not also pay damages for breach of the contract and the 1st plaintiff persisted in default to pay the balance of sale consideration in spite of several demands made by the defendant and several opportunities were also given to him to perform his part of the contract. The defendant further pleaded that under the said circumstances he wanted to give one more opportunity to the 1st plaintiff for payment of the balance of sale consideration with interest and damages for breach of the contract of Rs. 30,000/- and got a registered notice issued to the 1st plaintiff through his Advocate Sri T.V. Sarma, Gudivada on 14-8-1984 once again making the time essence of contract and gave him 15 days time for payment of the balance of sale consideration, interest and damages and for obtaining the sale deed and thus time was given to the 1st plaintiff till 31-8-1984 for performing his part of the contract. The 1st plaintiff received the said notice on 16-8-1984 but did not comply with the demand and did not also pay the amount claimed and thus once again caused breach of the contract. It was also further pleaded that the while issuing the last registered notice on 14-8-1984, the defendant made it clear to the 1st plaintiff that time again was made the essence of contract and if the 1st plaintiff fails to pay the balance of sale consideration of Rs. 30,000/- with interest and also the damages for breach of the contract of Rs. 30,000/- within 31-8-1984, the agreement of sale would become cancelled and the earnest amount of Rs. 25,500/- paid on 29-9-1982 and the amount of Rs. 30,000/- paid on 10-10-1982 would be lost by the 1st plaintiff and would be forfeited to the defendant and the 1st plaintiff would be liable to deliver possession of the schedule land to the defendant and that he would also be liable to pay profits to the defendant. It was also pleaded that the 1st plaintiff again caused breach of the contract, the agreement of sale became cancelled and that the 1st plaintiff is liable to deliver possession of the schedule land to the defendant. It was also further pleaded that it is absolutely false to state that the schedule land was an uneven pasture land with English Babul trees etc and it is also false to state that the 1st plaintiff had spent over of Rs. 10,000/- for clearing the Babul trees and other shrubs for reclamation and repairing the bore well therein for his cultivation. It is also false to state that during 1983-84 the 1st plaintiff could not transplant paddy in the entire extent as an extent of about Ac.5.00 was very uneven and could not be brought under cultivation. It is also false to state that the land did not yield more than 55 bags of paddy on the whole and therefore he incurred heavy loss. It is also false to state that attempts of the 1st plaintiff to grow vegetables also failed as there was no yield. The defendant further pleaded that it is absolutely false to state that after filing of the suit O.S. No. 106/83 on the file of District Munsif, Gannavaram, the 1st plaintiff and the defendant as advised by the mediators Motukuru Adinarayana, Sunkara Sreerama Murthy and T.Ramakrishnayya and Dr. Ch.Venkateswara Rao came to an arrangement on 11-12-1983 to the effect that the completion of the sale transaction should be postponed till at least the end of December 1984 and the balance of sale consideration be paid in the 1st week of January 1985 as both parties and the mediators had then a hope that the said litigation in all reasonableness might come to an end in the trial Court. It is also absolutely false to state that the defendant undertook to obtain Income Tax clearance certificate to facilitate execution and registration of a proper sale deed in favour of the plaintiff or his nominee. It is false to state that the partners to the contract by mutual consent and agreement extended the period stipulated in the contract for performance by either party. The defendant never agreed to postpone the completion of the sale transaction till end of December 1984 and he also never agreed to receive the balance of sale consideration in the 1st week of January 1985. The alleged mediators are all friends of the 1st plaintiff and they never advised the defendant at any time much less on 11-12-1983. It is also false to state that the transaction could not be completed for no fault of the 1st plaintiff and it is false to state that the 1st plaintiff incurred loss to a tune of Rs. 5000/- on account of the wrongful acts of the defendant and is therefore liable to reimburse the same. It was also further pleaded that it is absolutely false to state that the defendant is acting in collusion with the defendants in O.S. No. 106/83 on the file of District Munsif, Gannavaram in order to cause wrongful loss to the 1st plaintiff. It was also further pleaded that the 1st plaintiff was always not ready and willing to pay the balance of sale consideration with interest and he had no money also at all material times. The 1st plaintiff admitted breach of the contract also and it is false to state that the defendant had been evading to do so and evidently was not inclined to perform his part. O.S. No. 259/84 was filed for delivery of possession of the suit lands and for other reliefs and the defendant prayed that the contents of the plaint in the said suit may be read as part of the written statement in O.S. No. 30/85. It was also further pleaded that the defendant filed the suit O.S. No. 259/84 on 13-9-1984. The 1st plaintiff received the suit summons on or before 16-10-1984 and the 1st plaintiff engaged his Advocate and got filed his vakalat on 18-10-1984 into Court and the matter was posted to 19-11-1984 for filing written statement of the 1st plaintiff who is the defendant in that suit. Having received the plaint copy and suit summons, the 1st plaintiff intentionally executed the alleged assignment deed on 9-11-1984 and the 1st plaintiff is not entitled to execute the assignment deed on 9-11-1984. The 1st plaintiff is also not entitled to deliver any portion of the schedule property to the 2nd plaintiff on 9-11-1984 and it is absolutely false to state that the defendant is not entitled to any interest from 1-9-1984. The defendant is not aware of the alleged incident on 17-2-1985 and the defendant has nothing to do with the alleged incident. It was also further pleaded that it is absolutely false to state that the defendant is bound to undertake by making necessary covenants and recitals for title and peaceful possession and enjoyment of the suit land. The plaintiffs are not entitled to specific performance of the contract.

In view of the fact that the 1st defendant in O.S. No. 259/84 and the 1st plaintiff in O.S. No. 30/85 died, the legal representatives were brought on record. The undernoted Issues were settled in the respective suits:

Issues settled in O.S. No. 259/84:

Whether the plaintiff is entitled for the recovery of possession of the schedule property after ejecting the defendant therefrom?

Whether the plaintiff is entitled for future profits with interest, if so at what rate?

Whether the plaintiff is entitled alternatively a decree for Rs. 67,070/- with interest at 121/2 % p.a.?

Whether time is not the essence of the contract?

Whether the motor and pump set were included in the suit contract of sale?

To what relief?

Issues settled in O.S. No. 30/85:

Whether the time was made the essence of the contract dated 29-9-1982?

Whether the 1st plaintiff was always ready and willing to pay the entire amount payable under the agreement dated 29-9-1982?

Whether the 1st defendant committed breach of the contract dated 29-9-1982?

Whether the assignment deed executed by the 1st plaintiff in favour of the 2nd plaintiff on 9-11-1984 is binding on the defendant?

Whether the plaintiffs are not entitled to specific performance of the suit contract dated 29-9-1982 read with the agreement arrived at dated 11-12-1982 in favour of the plaintiffs i.e., by way of executing two separate sale deeds in favour of the plaintiffs one for an extent of Acs.5-70 cents on the Southern portion together with a motor and pump set therein in favour of the 1st plaintiff and the other sale deed in respect of Acs.5-70 cents which is the Northern portion in favour of the 2nd plaintiff?

To what relief?

In view of the joint Memo filed for clubbing of both the suits, evidence was recorded in O.S. No. 259/84 and the said evidence to be treated as evidence in O.S. No. 30/85 as well and accordingly the undernoted oral evidence had been recorded:

For plaintiff:

P.W.1 - Yelamanchili Ranga Rao

P.W.2 - Mothukuri Govardhana Rao

P.W.3 - Mothukuri Venkateswara Rao

P.W.4 - Uppaluri Subrahmanyam

P.W.5 - Mothukuri Narasimha Rao

For defendants:

D.W.1 - Vemuri Shanmukha Prasad

D.W.2 - Chanumolu Prakasa Rao

D.W.3 - Sunkara Sri Ram Murthy

D.W.4 - Chalapaka Venkateswara Rao

The documentary evidence placed before the trial Court is as hereunder:

Documents marked for plaintiff:

Ex. A. 1/14-8-1984 - Office copy of registered notice issued by plaintiff to 1st defendant in O.S. No. 259/84 Ex. A. 2/7-6-1984 - Registered notice issued by defendant (1st defendant in O.S. No. 259/84) to plaintiff and Asst. Engineer of A.P.S.E.B., Hanuman Junction.

Ex. A. 3/22-6-1984 -Office copy of registered notice issued by plaintiff to 1st defendant in O.S. No. 259/84 Ex. A. 4/2-7-1984 - Postal acknowledgement

Ex. A. 5/2/7-1984 - -do-

Ex. A. 6/5-7-1984 - -do-

Ex. A. 7/28-8-1989 - Certified copy of Judgment in O.S. No. 106/83 on the file of District Munsif Court, Gannavaram.

Documents marked for defendants:

Ex. B. 1/29-9-1982 - Contract of sale executed by plaintiff in O.S. No. 259/84 in favour of 1st defendant in O.S. No. 259/84

Ex. B. 2/10-10-1982 - Payment endorsement for Rs. 30,000/- on Ex. B. 1

Ex. B. 3/10-12-1975 - Sale Certificate in E.P. No. 77/72 in O.S. No. 135/71 on the file of District Munsif Court, Gannavaram.

Ex. B. 4/7-8-1983 - Certified copy of plaint in O.S. No. 106/83 on the file of District Munsif Court, Gannavaram.

Ex. B. 5/9-11-1984 - Sale assignment agreement executed by Vemuri Neelakanteswara Rao in favour of Chanumolu Prakasa Rao

Ex. B. 6/8-3-1985 - Counter foil of chalana showing the deposit of Rs. 38,800/- in the account of Advocate for plaintiff in O.S. No. 30/85 in Allahabad Bank, Vijayawada.

Ex. B. 7/6-9-1989 - Letter from Sri N.Sridhar, Advocate to 1st defendant Neelakanteswara Rao

Ex. B. 8/14-10-1989 - -do-

Ex. B. 9/20-3-1990 - Office copy of registered notice issued by plaintiff to Sri N. Sridhar, Advocate

Ex. B-10/24-3-1990 - Postal acknowledgement of Sri N.Sridhar, Advocate

Ex. B-11/3-9-1990 - Inland letter from Sri N. Sridhar to Neelakanteswara Rao

Ex. B-12/- Empty envelope in which Ex. B. 7 was sent

Ex. B-13/22-9-1984 - Office copy of registered notice issued by Sri N. Sridhar,

Advocate to Sri T.V.Sarma, Advocate for plaintiff in O.S. No. 259/84 Ex. B-14/25-7-1990 - Copy of registered notice to Branch Manager, K.D.Bank which was marked to 1st defendant in O.S. No. 259/84 by Sri T.V. Sarma, Advocate for plaintiff.

Ex. B-15/25-9-1984 - Postal receipt

Ex. B-16/27-9-1984 - Postal acknowledgement in receipt of Ex. B-13

Ex. B-17/28-8-1989 - Certified copy of decree in O.S. No. 106/83 on the file of District Munsif Court, Gannavaram.

Documents marked by Court:

Ex. C-1/25-9-1984 - Postal acknowledgement of Vemuri Neelakanteswara Rao (1st defendant in O.S. No. 259/84).

The trial Court on appreciation of the evidence available on record, recorded findings in detail, came to the conclusion though P.W. 1 had put Neelakanteswara Rao on notice making time the essence of contract for the purpose of contract since he had not been ready and willing to perform his part of the contract, the relief of specific performance cannot be granted and the mediation set up in this regard had been disbelieved and further came to the conclusion that in view of the facts and circumstances, the plaintiff in O.S. No. 259/84 on the file of Subordinate Judge is entitled to the reliefs prayed for and the plaintiffs in O.S. No. 30/85 are not entitled to the relief of specific performance. Aggrieved by the said Decrees made in the respective suits, the Appeals A.S. No. 1121/94 and 1212/94 had been preferred.

I.A. No. 823/95 was filed in O.S. No. 259/84 for ascertainment of mesne profits over an extent of Acs.11-40 cents in R.S. No. 183 of Ampapuram from 13-9-1984 till 14-7-1995, the date of filing of the application wherein the Commissioner was appointed who had recorded the evidence of P.W. 1 to P.W. 4, R.W. 1 to R.W. 8 and also marked Exs. A-1 to A-8, Exs. X-1 to X-26 and the learned Judge framed the following Point for consideration at para-3:

What is the amount of mesne profits to which the petitioner is entitled to on Acs. 11-40 cents from 13-9-1984 onwards?

The learned Judge appreciated the evidence available on record, recorded findings at para-4 in detail and came to the conclusion that the petitioner is entitled to mesne profits of Rs. 1,52,058-96 ps. from 1984 to 1994 on Acs.11-40 cents with interest at 12% p.a. on mesne profits and thus a final decree was passed with costs declaring that the petitioner is entitled to mesne profits at Rs. 5,142/- for the year 1984-85; Rs. 5,142/- for the year 1985-86; Rs. 6,215/- for the year 1986-87; Rs. 6,430/- for the year 1987-88; Rs. 7,260/- for the year 1988-89; Rs. 21,061/- for the year 1989-90; Rs. 27,119/- for the year 1990-91; Rs. 34,567/- for the year 1991-92; Rs. 51,620/- for the year 1992-93 and Rs. 12,550/- for the year 1993-94 from the respondents 2 to 5 with interest thereon at 12% p.a. on the said amounts from 1st July of the respective succeeding years till the date of realization, less Rs. 25,084/-. The submissions made by the respective Counsel in this regard already had been referred to supra.

At the outset, it may be appropriate to have a look at the recitals of Ex. B-1, which read as hereunder:

P.W. 1 deposed that he is the plaintiff in O.S. No. 259/84 and defendant in O.S. No. 30/85 and the defendant purchased the plaint schedule property from him at Rs. 7500/- per acre and the plaint schedule property was sold for a total sum of Rs. 85,000/- and he had executed an agreement of sale dated 29-9-1982 and received an advance of Rs. 25,500/-. The balance of sale consideration was to be paid within two months and the sale deed to be obtained. P.W. 1 also deposed that the defendant agreed to pay interest at 12% per annum and possession also was delivered on the date of agreement and he did not obtain any counter-part agreement. P.W. 1 also deposed that the balance of sale consideration to be paid in time. The extent of the property is Acs.11-40 cents. There is a well with bore well and motor pump set in the suit land and he sold only land and not the motor pump set. The property was delivered on the date of the agreement of sale. P.W. 1 also deposed that on their request to permit them to use the motor pump set till registered sale deed was executed, he had permitted. The suit land is a good land and paddy and commercial crops can be grown. P.W. 1 also further deposed that when certain third parties tried asserting right of way or right of track, P.W. 1 and the defendant Neelakanteswara Rao filed the suit O.S. No. 106/83 on the file of District Munsif Court, Gannavaram and it was decreed. P.W. 1 also deposed that the defendant did not pay the balance of sale consideration and hence he had issued a notice through his Advocate and the office copy is Ex. A. 1. P.W. 1 also deposed that he informed the defendant that if he does not obtain the sale deed within the time specified in the notice, the agreement will stand cancelled. P.W. 1 also deposed that time to be treated as essence of contract and time was fixed upto 31-8-1984. The defendant received the said notice and since the same was not performed he filed the suit for recovery of possession and he also claimed damages. P.W. 1 also deposed that he prayed for alternative decree for recovery of Rs. 30,000/- with interest at 12% p.a. and also damages of Rs. 30,000/-. This witness, P.W. 1, also had taken specific stand that he had not parted with the electric motor and the pump set. He also deposed that the defendant issued a notice prior to his notice and the contents of the said notice are not correct. Ex. A. 1 was given in reply to the said notice and it is Ex. A. 2. P.W. 1 also deposed that he submitted a petition to the Electricity Department to disconnect the electricity connection. It was also deposed that it is not true to say that he agreed to give time till January 1985 in the presence of elders mentioned in the written statement and he was always ready and willing to perform his part of the contract and there is no default on his part and the default was committed by the defendant. P.W. 1 also deposed that the 2nd plaintiff in O.S. No. 30/85 is the viyyanka of the 1st plaintiff and the defendant pleaded therein that he sold Acs.5.00 to the 2nd plaintiff Prakasa Rao and executed assignment in favour of the said Prakasa Rao and he is not aware of the transaction in between them. P.W. 1 also deposed that the defendant had no right to take specific performance of the contract of sale and further deposed that he is entitled for the suit amount as prayed for. In the cross-examination, this witness, P.W. 1, deposed that except the bore well there is no other source of water supply and he purchased the suit land in Court auction in 1975. Even before that there was well with motor pump set. This witness admitted having received the amount and having delivered possession under Ex. B. 1 and further deposed that the balance of sale consideration to be paid within two months and if the amount is not paid within two months, he is entitled for interest. P.W. 1 also deposed in cross- examination that the agreement does not mention time as the essence of contract and there is no clause to forfeit the amount. P.W. 1 also in cross-examination deposed that the defendant paid Rs. 30,000/- under Ex. B. 2, but however again asserted in cross-examination that he had not parted with motor and the pump set. P.W. 1 also deposed that the 1st defendant agreed to use the motor and the pump set for two months and thereafter to give it to him. It was also deposed that after two months P.W. 1 demanded for return of pump set and the 1st defendant promised to return it after execution of the sale deed. The suggestion put to the witness that the scribe looked into the sale certificate and since the sale certificate did not mention the motor pump set, the same had not been mentioned by mistake, had been specifically denied. There is admission made by P.W. 1 that the third parties claimed track high-handedly and they had no such right at all since there was no such cart track and P.W. 1 along with the said Neelakanteswara Rao filed O.S. No. 106/83 on the file of District Munsif Court, Gannavaram. Several suggestions put to this witness in relation to the mediation and extension of time had been specifically denied. This is the evidence of P.W. 1.

P.W. 2 deposed that he knows certain adjacent lands to this Acs.11-40 cents and it is a cultivable land and the entire land is fit for cultivation and there is no cart track in the suit land. This witness, P.W. 2, was cross- examined. P.W. 3 is yet another witness who had deposed on the lines of P.W. 2.

P.W. 4 is the scribe of Ex. B. 1 who deposed that he knows the parties and the 1st defendant purchased the suit land from the plaintiff and he is the scribe of the agreement of sale Ex. B. 1. He further deposed that he does not know whether the property was purchased along with the motor pump set or without it. He drafted Ex. B. 1 as per the instructions of both the parties. Motukuri Narasimha Rao and another attested the document. In the cross-examination, this witness, P.W. 4, deposed that when schedule is prepared the contents of the old title deeds will be copied generally and like that he prepared Ex. B. 1 basing on the sale certificate.

Apart from the evidence of P.W. 4, the evidence of P.W. 5 also is available on record concerned with Ex. B. 1. P.W. 5 deposed that he knows both the parties and the defendant purchased the suit land from the plaintiff. P.W. 4 is the scribe of Ex. B. 1 and he attested it and the land alone was purchased under Ex. B. 1. The motor pump set is not included in the sale agreement. P.W. 5 also deposed that the entire land is under cultivation. The other attestor died. There is no cart track in the suit land. In the cross-examination, this witness deposed that there was motor pump set in the lands and there was no discussion about it and he does not know how they wanted to dispose it off and since there was no reference, mention or discussion about the motor pump set he was saying that it was not included in the sale agreement. The lands were dependent upon the motor pump set. There are cases where the motor pump set were sold separately without the land. No doubt, this witness denied certain suggestions. Thus, the evidence of P.W. 1, P.W. 4 and P.W. 5 is concerned with Ex. B. 1 and the evidence of P.W. 2 and P.W. 3 is more or less general in nature relating to the fitness of the land for cultivation and the absence of cart track.

As against this evidence, the evidence of D.W.1, the 3rd defendant in the suit O.S. No. 259/84, the evidence of D.W.2, the 2nd plaintiff in O.S. No. 30/85, D.W.3 and D.W.4, the mediators, is available on record. D.W.1 deposed about the relationship and his father filing the suit O.S. No. 30/85 for specific performance. He also deposed that his father purchased the plaint schedule property from P.W. 1 at Rs. 7500/- per acre and the total extent of the schedule land is Acs.11-40 cents and the total cost is Rs. 85,500/-. D.W.1 further deposed that his father obtained agreement of sale with possession in respect of the suit property under Ex. B. 1 and his father paid Rs. 25,500/- and subsequent thereto his father paid Rs. 30,000/- on 10-10-1982 under Ex. B. 2 and the property was delivered to his father. D.W.1 also deposed that the land was full of bushes and uneven and it was a pasture land and there were trees. His father spent about Rs. 10,000/- in those days to convert it into cultivable land. In spite of his efforts he was only able to bring Acs.5.00 into cultivation by 1983. D.W.1 also further deposed that the plaintiff purchased the suit land in Court auction and the plaint schedule property is a dry land and requires a bore well and motor and his father purchased the land along with the motor pump set in bilmaktha. D.W.1 also deposed that while preparing Ex. B. 1, the scribe copied the schedule from the sale certificate Ex. B. 3 since Ex. B. 3 does not specify the motor pump set it was not mentioned in Ex. B. 1 also. It is not possible to cultivate the land without motor and pump set and nobody will purchase the land without motor and pump set. He was not present at the time of Ex. B. 1 and at the time of delivery of possession of the land. Along with the land, motor and the pump set also had been delivered to them. D.W.1 also deposed that the time was not the essence of contract at the time of Ex. B. 1. P.W. 1 never disclosed to them that there was a right of pathway in the suit land. They believed the representation of P.W. 1 and entered into the contract with him and subsequently the neighbouring ryots claimed right of passage and whenever they enquired P.W. 1 stated that there was no such right at all and therefore there was some discussion in the village about the said motor and there was some delay in relation to the said aspect and therefore his father and P.W. 1 jointly filed O.S. No. 106/83 on the file of District Munsif Court, Gannavaram against Kakani Rama Rao and others. A copy of the plaint in the said suit is Ex. B. 4. The defendants contested the matter on the ground of right of passage. D.W.1 specifically deposed that in view of the pendency of the suit, his father and D.W.1 came to an understanding at the instance of mediators Sri Ramamurthy, Venkateswara Rao, Adinarayana and Ramakrishnayya to postpone the performance of Ex. B. 1. The balance of sale consideration to be paid after the sale deed was executed. This witness also deposed that P.W. 1 had not produced the Income Tax clearance certificate. Specifically D.W.1 deposed that the time for specific performance of contract of sale under Ex. B. 1 was extended by mutual consent. P.W. 1 got electricity connection disconnected in August 1984 and therefore they sustained loss of crop. The plaintiff wanted to give a go-bye to Ex. B. 1 and take possession of the property. Therefore he did so. D.W.1 also deposed that they originally belonged to Mantena and they came to the suit village in view of Ex. B. 1. The plaintiff has got local support and influence. P.W. 1 colluded with the defendants in Gannavaram Court and delayed the disposal of the suit. D.W.1 further deposed that his father was always ready and willing to perform his part of the contract. The plaintiff was never ready and willing to perform his part of the contract and hence P.W. 1 is not entitled to the reliefs prayed for in O.S. No. 259/84 and he is not entitled for damages. D.W.1 also deposed about the assignment made by his father in favour of the 2nd plaintiff in O.S. No. 30/85 on 9-11-1984 under Ex. B. 5 assignment deed and he is his father-in-law and he has no objection for executing the sale deed in favour of his father-in-law in pursuance of Ex. B. 5. His father engaged Sri Nanduri Sridhar, Advocate of Vijayawada and he filed O.S. No. 30/85. On advise, his father wanted to deposit the balance of sale consideration into Court and hence his father gave Rs. 38,800/- to the said Advocate to deposit in Court. Later in 1989 his father learnt that the said Advocate Sri Sridhar had deceived several clients relating to the Court deposits and his father also learnt that he did not deposit the amount into Court, but he deposited Rs. 38,800/- on 8-3-1985 in his personal savings bank account in Allahabad Bank, Vijayawada and the counter foil is Ex. B. 6. It was also learnt that the said Advocate withdrew the amount from Allahabad Bank and used it for himself. By then he shifted to Hyderabad and on enquiry he told that he deposited the amount into the Court. D.W.1 and another approached the Advocate and he sent a letter Ex. B. 7 and he gave another letter Ex. B. 8. Subsequently he gave a cheque for Rs. 38,000/- and when presented the same in Bank and it was returned twice. Thereafter they issued a notice on 20- 3-1990 to the said Advocate and Ex. B. 9 is the office copy and Ex. B-10 is the postal acknowledgement. They did not receive any amount from the said Advocate and his whereabouts are not known now. The said Advocate was reprimanded by the Bar Council for professional misconduct. He wrote another letter Ex. B-11 and Ex. B-12 is the envelope in which Ex. B. 7 was sent. D.W.1 also deposed that they are prepared to deposit the balance of sale consideration to be directed by the Court. Ex. B-13 is the reply for Ex. A. 1. Even after the suit, plaintiff canvassed against them not to get any loan and he issued a notice to Sri Kanaka Durga Gramina Bank, Ex. B-14. They filed the suit O.S. No. 30/85 for execution of sale deed in their favour and in favour of their father-in-law. The plaintiff is not entitled to delivery of possession or profits. This witness, D.W.1, was cross-examined in elaboration. He deposed that they sold Acs.3.00 of land for Rs. 66,000/- at Mantena in the year 1982 and they got only Acs.3.00 and his sisters marriage was celebrated about 20 years back. By the time of purchase of the property, he was working at Vijayawada in a private company. His marriage had taken place in 1984 and his elder brother''s marriage was in 1979. This witness also deposed about the jobs which they were doing in 1984. Certain answers were elicited relating to the 2nd plaintiff in O.S. No. 30/85 i.e., father-in-law of this witness. In the elaborate cross-examination in relation to Ex. B. 1, convincing answers had been given by this witness, D.W.1 and he also explained again why the motor and the pump set had not been mentioned in Ex. B. 1. D.W.1 also deposed that by 1984 they brought 4 or 5 acres of land into paddy cultivation and the suggestions put to him that they had been deriving huge income had been specifically denied. He further deposed that he does not know the contents of Ex. A. 2 and his father told him that such notice was issued and he does not know whether the reasons for non-obtaining of sale deed in relation to the dispute regarding pathway and also want of Income Tax clearance certificate had been mentioned or not in the said notice. D.W.1 also was cross- examined in relation to Ex. B-13. D.W.1 also deposed that he does not know whether his father received the suit summons on 25-9-1984 as per Ex. C-1 postal receipt. He also deposed that it is not true that his father sent Ex. B-13 reply after he got knowledge of the suit. D.W.1 also further deposed that the 1st defendant did not tell him that he obtained the document extending the time for performance of the contract. Though specific suggestions were put to this witness relating to mediation, he asserted that there was mediation. D.W.1 denied the suggestion that they did not pay any amount to the Advocate and he was deposing falsely.

D.W.2, 2nd plaintiff in O.S. No. 30/85, deposed about the relationship and also Ex. B. 5 assignment deed and taking delivery of possession of the land from the 1st defendant in pursuance thereof.

The evidence of D.W.3 and D.W.4 is crucial. At the outset, it may be stated that from the earliest point of time starting from the reply notice, the pleadings and also the evidence, the consistent stand is that there was mediation relating to the extension of time. D.W.3 deposed that he knows both the parties and the suit transaction. After the agreement of sale there was dispute for cart track raised by Kakani Rama Rao and others. The plaintiff and the defendant filed a suit against Kakani Rama Rao in District Munsif Court, Gannavaram regarding the cart track and they asked him to give evidence. This witness, Dr. Venkateswara Rao, Telaprolu, Motukuri Adinarayana and Sureddi Ramakrishna went to P.W. 1 and asked him to settle the dispute regarding the cart-track. The 1st defendant was ready to take the sale deed. P.W. 1 offered to execute the sale deed after the dispute relating to the cart track was over. The defendant asked for Income tax clearance certificate for which P.W. 1 agreed and it was decided that the sale deed can be taken after the cart track suit was disposed of. D.W.3 also deposed that he knows the suit land and by the date of the agreement of sale there was wild growth of Babul trees in the suit land. D.W.3 also deposed about the plaintiff purchasing it in Court auction. Even by then the land was kept fallow and by the bore well with motor, the lands were being irrigated. Generally land would be sold along with all existings like bore well, motor, pump set etc. There is no practice of removing the motor, bore well and selling the land only. Some time later, P.W. 1 colluded with the defendants in the suit at Gannavaram and prolonged the disposal and it had taken long time for disposal. The suit land was not in a fit condition for cultivation at the time of sale and the 1st defendant made it fit for cultivation. D.W.3 was cross-examined at length and he asserted that they had gone to the house of P.W. 1 for mediation and several of the suggestions put to this witness had been specifically denied.

D.W.4 is a private medical practitioner and he also specifically deposed about the decision of the mediators that the sale deed to be executed after the suit at Gannavaram be disposed of and also on production of Income tax clearance certificate by P.W. 1. Both the parties agreed for such conditions and then he went away. Both the parties agreed to prosecute the suit in Gannavaram District Munsif Court together and get the suit disposed of at an early date. In the cross-examination several suggestions put to this witness also had been denied. This is the evidence available on record.

At the outset it may be stated that in between the contracting parties, P.W.1 is alive and the other contracting party Neelakanteswara Rao is no more and hence the evidence of D.W.1 who had deposed relating to his knowledge about all the facts may have to be relied upon apart from the independent mediators D.W.3 and D.W.4 as well.

parties, P.W. 1 is alive and the other contracting party Neelakanteswara Rao is no more and hence the evidence of D.W.1 who had deposed relating to his knowledge about all the facts may have to be relied upon apart from the independent mediators D.W.3 and D.W.4 as well. 29. Strong reliance was placed on the office copy of registered notice issued by P.W. 1 to the said Neelakanteswara Rao, Ex. A. 1, dated 14-8-1984. It is no doubt true that in Ex. A. 1, the terms of the contract already had been repeated and it was specified that time is the essence of contract and further time was fixed calling upon Neelakanteswara Rao to perform his part of the contract within the said time, in default it is to be taken that the agreement of sale is cancelled and the amount already paid as having been forfeited. This is made the strong ground of attack on the ground that though normally it is to be taken that time is not the essence of contract in case of immovable property, in the light of the specific time stipulated in Ex. B. 1 coupled with Neelakanteswara Rao being put on notice making time the essence of contract, inasmuch as the said Neelakanteswara Rao was not ready and willing to perform his part of the contract, the relief of specific performance to be negatived. Strong reliance was placed on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., in this regard. Reliance also was placed on S. Venkateswarlu and Anr. v. Naghubandi Venkata Narasaiah 1994 (1) L.S. 179.

There cannot be any doubt whatsoever that though normally time cannot be taken to be the essence of contract in relation to immovable property, the same can be made the essence of contract by a subsequent action. At any rate, the performance to be completed without unreasonable delay and if on the facts and circumstances the Court is satisfied that for want of readiness and willingness to perform the part of the contract, the relief of specific performance may be negatived. However, the balancing facts whether to grant the relief of specific performance or to negative the relief of specific performance in a particular given case may have to be carefully analysed depending upon the facts and circumstances of the case. Suffice to say, even on the aspect of readiness and willingness to perform part of the contract, no straight-jacket formula can be laid down in this regard and this may vary from case to case depending upon the facts of a particular given situation.

The recitals of Ex. B. 1 being self-explanatory, need not be repeated again since the same had been specified supra. The Schedule of the sale certificate Ex. B. 3 reads as hereunder:

Schedule of property

Property situated in Ampapuram village within Kanumolu Sub-Registry, Gannavaram taluk and in Krishna District.

Rs.No. Extent A.C. Hectares Wet or Dry 183 11-40 4-56 Wet Boundaries:

East : Kakani Ramarao''s land South : Cherukuru Rama Tulasamma and Tiyyagura Adinarayana reddy etc., lands West : Kakani Rama Rao''s land North : Kakani Rama Rao''s land

It is needless to say on comparison of this schedule if the schedule of Ex. B. 1 to be carefully scrutinized, the reason for non-mentioning of the electric motor and pump set would be clear. It is pertinent to note that Ex. B. 1 is an agreement of sale coupled with delivery of possession. Exs. A-1, A-2 and A-3 are the notices. Exs. A-4, A-5 and A-6 are the postal acknowledgements. Ex. A. 7 is a certified copy of the Judgment in O.S. No. 106/83 on the file of District Munsif, Gannavaram. Ex. B-13 is dated 22-9-1984. This was the reply given by Neelakanteswara Rao and the said Neelakanteswara Rao is no more as already specified above. Some comment is made relating to this notice on the ground that this was thought of only after P.W. 1 instituted the suit for recovery of possession and the suit summons had been received. Even in this context, the evidence of D.W.3 and D.W.4 may be of some relevance for better appreciation of the facts of the present case. The relevant portion of the said notice is as hereunder:

It is not true to allege that our client committed breach of the contract for any reason. It is also true to state that your client has delivered his motor and pump set to our client as already stated in his prior notice dated 7-6-1984, as the motor and pump set formed part of the bargain and impleaded in the sale transaction, though an express recital was not made in the contract of sale. The Schedule wherein the motor and pump set should have been mentioned as usual was actually copied from the sale certificate which your client supplied at the time of drafting the agreement and as the sale certificate does not make mention of it, it was not mentioned in the contract of sale. But the sale consideration included the price of the Motor and pump set also. It is a dry land and without motor and pump set cultivation should not be carried on there. It is not true to allege that our client requested your client to permit him to use the same till the date of registration of the sale deed and that thereafter he would redeliver the same to your client. All the allegations contra in your notice are not true and correct including those stated in your clients notice dated 22-6-1984.

It is not true to state that our client has committed default and has not paid the sale consideration or that time was made the essence of contract or that he is liable to pay damages at Rs. 30,000/- or any other amount. It is also not true to state that our client is liable to pay damages at Rs. 300/- (Rupees three hundred) per month for the motor and pump set for any period. It is also not true to state that our client has derived profits on the land more than the interest stipulated and therefore he is liable to pay damages at Rs. 30,000/- or any other amount. As already stated our client suffered heavy loss in cultivating the land and in fact he could not cultivate the entire land as it was very uneven and also being pasture land he could not cultivate an extent of about Ac.5-00 cents actually, which remained uncultivated without any yield whatsoever. The vegetable crops also failed to yield anything. In any case our client is not liable to pay any damages under any count.

Your client represented and asserted that there were no encumbrances on the land and nobody including the neighbours had any right of way, any channel or any other easement or other right over the land in reference and so saying he induced our client to enter into the contract of sale. Subsequently as some persons claimed a right of way your client and our client are obliged to file O.S. No. 106/83 on the file of D.M.C. Gannavaram on 9-8-1983 against Kakani Rama Rao, Tiyyagura Adireddi and Kakani Ramakrishnaiah for a permanent injunction and other reliefs and it is pending. They are contending that there is a right of way for them on the land contrary to the representations of your client and the suit stands posted to 11-10-1984. After filing the suit finding that the final decision therein would take some time, as advised by and settled before the mediators one Motukuri Adinarayana, Sunkara Sreerama Murthy, Sureddi Ramakrishnayya and Dr. Chalapaka Venkateswara Rao, it has been arranged by your client and our client on 11th December 1983 that the completion of the sale transaction should be postponed for the time being till at least the end of December 1984 and that our client should pay the balance of sale consideration as per the contract in full in the first week of January 1985 and your client should obtain meanwhile Income tax Clearance Certificate and execute and register a proper sale deed at our client''s expense including in the schedule the motor and pump set in reference also. They hoped that by that time they would be able to take a favourable decision in the suit O.S. No. 106/83. It is for that reason that the payment of the sale consideration with interest as well as the performance of contract by either party has been postponed and it is not on account of our client not being ready to pay the sale consideration or to perform his part in any way that the completion of the transaction was postponed. Your client has now comeforth with a totally false case throwing the blame on our client, which could not be done for the simple reason that both of them are prosecuting the suit O.S. No. 106/83. While so, your client has wrongfully got removed the Electricity Connection for the motor about a week back without the knowledge of our client and made it impossible to have supply of water to the crop that has been transplanted last month i.e., in August. On account of your client''s wrongful acts the crop has been hithering away due to lack of water and our client is trying to get his own connection which he could not get so far. For this your client is liable to pay heavy damages to our client to the tune of Rs. 5000/- (Rupees five thousand only) minimum.

Thus, the names of D.W.3 and D.W.4 and others had been specified even at the earliest point of time in the reply notice Ex. B-13, dated 22-9-1984 by the father of D.W.1. The stand taken in this regard being self-explanatory, need not be further elaborated.

Exs. B-1 and B-2 are not in controversy. The execution of the same had been admitted even by P.W. 1. Ex. B. 4 is a certified copy of the plaint in O.S. No. 106/83 on the file of District Munsif Court, Gannavaram. Ex. B. 5 is the assignment agreement. No doubt it is in between Neelakanteswara Rao, Prakasa Rao, the 2nd plaintiff in O.S. No. 30/85. Exs. B-6, B-7, B-8, B-9, B-10, B-11 and B-12 would go to show that Neelakanteswara Rao paid the money for making deposit, but however the deposit was not made by the Counsel appears to have made deposit in his name in his account. Be that as it may, this fact need not detain this Court for the reason that these documents relied upon to show that as on the date of institution of the suit Neelakanteswara Rao was ready and willing to perform his part of the contract and had the money with him and that is the reason why he made an attempt to make the deposit. D.W.1 also deposed about Exs. B-14, B-15, B-16 and B-17 as well. Ex. B-17 is a certified copy of the Decree in O.S. No. 106/83 on the file of District Munsif Court, Gannavaram dated 28-8-1989. Ex. A. 7 is a certified copy of the Judgment in O.S. No. 106/83 of the said date. The date of disposal of the suit as reflected by Ex. A-7 and Ex. B-17 would assume lot of importance. On the aspect of readiness and willingness to perform part of the contract and what are the relevant factors to be taken into consideration and how to exercise discretion in either granting or refusing the relief of specific performance, strong reliance was placed on the undernoted decisions : Raja Ratan Gopal Sainchar (died) and Ors. v. Rajendra Prasad and Ors. 1997 (1) A.L.D. 25 (D.B.), Mandava Lokeswara Rao Vs. Devineni Vijaya Lakshmi, , Dr. T.M. Jayarama Reddy and others Vs. Bingi Sreeramaiah Chetty and others, , Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, and Faquir Chand v. Sudesh Kumari (2006) 7 Supreme 388.

Here is a case where the facts appear to be equally balancing in favour of and against the contesting parties as well. In a suit for specific performance, it is no doubt true that the plaintiff praying for such relief may have to establish his readiness and willingness to perform his part of the contract. D.W.1 was employed at the relevant point of time. The deceased Neelakanteswara Rao, though his sons had been employed, appears to have been an agriculturist at the relevant point of time, who sold away his complete property in their original village and entered into Ex. B. 1 transaction. As can be seen from the evidence available on record, P.W. 1 appears to have given some trouble in relation to the disconnection of electricity supply as well. Apart from this aspect of the matter, the fact that P.W. 1 and Neelakanteswara Rao instituted the suit O.S. No. 106/83 on the file of District Munsif, Gannavaram, is not in serious controversy and the same matter was not disposed of even by the time these suits were instituted. It is an important fact to be taken into consideration especially in the light of the evidence of D.W.3 who deposed that P.W. 1 began sailing with those parties in seeing that the disposal of the suit itself is delayed. Evidently, from the over-all appreciation of the facts and circumstances, especially in the light of the independent evidence of D.W.3 and D.W.4, it appears that P.W. 1 having parted with the property by virtue of a possessory agreement of sale Ex. B. 1, because of the subsequent hike of prices, had changed the idea and intended to have the property back again to his fold.

This is the only conclusion at which this Court can arrive at in the peculiar facts and circumstances of the case. From the facts available on record and the oral and documentary evidence available on record, the following essential facts may be culled-out : (1) The execution of Ex. B. 1 and Ex. B. 2 is not in serious controversy; (2) The recital that two months time had been fixed in Ex. B. 1 and thereafter interest is payable, also is not in controversy; (3) By virtue of Ex. B. 2 further payment was made and thus initially Rs. 25,000/- and subsequent thereto Rs. 30,000/- i.e., Rs. 55,000/- had been received by P.W. 1, also is not in controversy; (4) The remaining amount left over to be paid is only Rs. 30,000/-; (5) It is also pertinent to note Ex. B. 1 is a possessory agreement of sale and Neelakanteswara Rao had taken possession of the property; (6) In relation to the nature of the properties though there is some controversy and some evidence had been let in through P.W. 1, P.W. 2 and P.W. 3 as well, that all was well with these lands and they were fit for cultivation, in the light of the independent evidence of D.W.3 and D.W.4, this Court is of the considered opinion that the lands were not in a fit position for cultivation and the said Neelakanteswara Rao had brought a portion of the suit lands under cultivation by incurring some expenditure; (7) The dispute raised by Kakani Rama Rao and others asserting the right of path way is not in controversy and the filing of the suit in relation thereto and the disposal thereof after a long lapse of time even after the institution of the suit also is not in serious controversy; (8) It is pertinent to note that from the earliest point of time Neelakanteswara Rao had taken the stand of mediation and this stand is consistent and in his reply notice Ex. B-13, he explained the reason for the delay in issuing the reply notice as well; (9) It is also pertinent to note that the sale certificate does not disclose the motor and pump set and equally Ex. B. 1 also does not disclose the motor and the pump set; (10) It is also pertinent to note that certain admissions had been made that these lands cannot be cultivated without the assistance of the said motor and the pump set and P.W. 1 had given some trouble by making an attempt to get the electricity supply disconnected; (11) There is some evidence available on record relating to the insistence for production of I.T. clearance certificate as well.

In the light of the aforementioned essentials which could be culled out from the facts and also the oral and documentary evidence available on record, it may have to be appreciated whether the reasons recorded by the trial Court negativing the relief of specific performance be sustained. At this juncture, it may also be pointed out that in pursuance of the decree for possession, it appears an application already had been moved and mesne profits had been asked and in pursuance of certain directions made by this Court, some amount had been deposited. Be that as it may, on a careful analysis of the whole evidence available on record, this Court is thoroughly satisfied that P.W. 1, an employee, being not interested in the agriculture having parted with the property and having inducted Neelakanteswara Rao and the family into possession of the property, evidently changed his stand subsequent thereto for certain reasons best known to him. It is pertinent to note that immediately after Ex. B. 1, it appears there was some dispute relating to assertion of the right of path way and at that time both P.W. 1 and Neelakanteswara Rao instituted the suit O.S. No. 106/83, but subsequent thereto, P.W. 1 parted away and this is evident from the evidence of the independent witness D.W.3 who had asserted that after some time P.W. 1 began sailing with the opposite parties to see that the disposal of the suit is delayed. It is but natural that a seller and a buyer may have to perform certain obligations. When there was some controversy from certain of the villagers, it is but natural that Neelakanteswara Rao could have insisted upon the clearance of the same and may be for that reason P.W. 1 and Neelakanteswara Rao instituted the suit O.S. No. 106/83 on the file of District Munsif, Gannavaram. It is also pertinent to note that the same was disposed of in the year 1989 and in the meanwhile by virtue of the exchange of notices Ex. A. 1 and Ex. B-13, the suits O.S. No. 259/84 and O.S. No. 30/85 had been instituted by the respective parties claiming the respective reliefs. The contents of Ex. B-13 being self-explanatory, already had been referred to supra.

The evidence of D.W.1 is clear and categorical. These family members had left the jobs for the sake of agriculture. These are the over-all facts and circumstances of the present case.

In the light of the fact that O.S. No. 106/83 was disposed of long after the institution of the present suits, it would definitely probabilise the specific stand taken by D.W.1 as can be seen from Ex. B-13 at the earliest point of time and also well supported by the clear independent evidence of the respectable elders, D.W.3 and D.W.4. This Court is inclined to believe the evidence of D.W.3 and D.W.4, especially in the light of the strong circumstance that the suit O.S. No. 106/83 was disposed of long after the institution of the present suits, only in the year 1989. In the light of these facts and circumstances, can it be said that merely because by issuance of Ex. A. 1 it was specified that time was being made the essence of contract and the agreement shall stand cancelled and the amount already paid by Neelakanteswara Rao to be forfeited? Can it be said that Neelakanteswara Rao was not ready and willing to perform his part of the contract? In this regard, the series of successive dates in relation to the exchange of notices and also the conduct of the parties also may have to be considered. It is also pertinent to note that the word ''bilmaktha'' had been used in Ex. B. 1. Hence, in the light of the evidence of D.W.3 and D.W.4, this Court is of the considered opinion that whether obtaining of Income Tax clearance certificate would be necessary or not, it may also not be of any serious consequence in the light of the fact that the suit instituted by both P.W. 1 and Neelakanteswara Rao was disposed of long after the institution of these suits. Hence, in the light of the same, the findings recorded by the trial Court that Neelakanteswara Rao was not ready and willing to perform his part of the contract, since time was made the essence of contract by issuance of notice, may not be a sustainable finding in the light of the peculiar facts and circumstances of this case.

Point No. 5: In the light of the findings recorded above, inasmuch as the plaintiffs in O.S. No. 30/85 are bound to succeed, the plaintiff in O.S. No. 259/84 is not entitled to the reliefs prayed for in the said suit and accordingly the suit O.S. No. 30/85 to be decreed and O.S. No. 259/84 to be dismissed. It is needless to say that the other Appeal filed i.e., A.S. No. 557/2002, as against the fixation of mesne profits being only consequential to the relief of recovery of possession granted in O.S. No. 259/84 by the trial Court, findings in detail need not be recorded in this regard and however it is made clear that the amount said to have been deposited already in pursuance thereof to be adjusted towards the amount payable in relation to the decree for specific performance as specified supra. It is no doubt true that in Ex. B. 1 after a period of two months it was accepted that interest at 12% p.a. is payable. Hence it is made clear that on the remaining amount of Rs. 30,000/- payable, the plaintiffs in O.S. No. 30/85 are liable to pay interest at 12% p.a. from the date stipulated in Ex. B. 1 till today. This would be just and equitable in the facts and circumstances of the case especially taking into consideration the terms of Ex. B. 1.

Accordingly, the Decrees and Judgments of the Court below are hereby set aside and the suit O.S. No. 259/84 is hereby dismissed and the application I.A. No. 823/95 in O.S. No. 259/84 also is hereby dismissed and the suit O.S. No. 30/85 is decreed, no doubt subject to the condition of payment of interest at 12% p.a. on the remaining amount payable by the plaintiffs from the date stipulated in Ex. B. 1. Accordingly, the Appeals A.S. Nos. 1121/94 and 1212/94 are allowed and A.S. No. 557/2002 is also hereby allowed. However, in the light of the balancing facts and the nature of contest of the parties, the parties to the litigation to bear their own costs.