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2002 Supreme(AP) 406
Andhra Pradesh High Court
Koneru Syam Sundara Rao - Appellant
Versus
Pendurti Kanaka Durga - Respondent
A.S.No.3347/90
Decided On : 03-15-02
Advocates Appeared :
Mr.V.Parabrahma Sastry, Mr.V.S.R. Anjaneyulu
Headnote:SPECIFIC RELIEF ACT,
Sec.20(2)(b) & (c) - Suit for specific performance of agreement of sale - Defendant pleads that schedule property is in possession of third parties and offered to refund advance amount - Trial court decreed suit - A person cannot convey better title than what he has - If in fact defendant did not have marketable title he cannot be compelled to convey a property in respect of which he does not have title or possession - Defendant categorically stated in his evidence that third parties are in possession and enjoyment of property and nothing elicited to discredit his testimony - Neither oral nor documentary evidence placed by plaintiff before Court to show that defendant was in fact in possession and enjoyment of property - Evidence on record establishes that third parties are in possession - Grant of relief of specific performance is discretionary - Facts of present case attract Provisions of Sec.20(2)(b) & (c) - Decree of trial court - Unsustainable.
No alternative prayer in suit for refund of advance amount - In view of prohibition contained in Sec.22(2) Court cannot grant decree for refund of advance amount - Plaintiff is at liberty to take steps for recovery of earnest money.
( 1 ) IN this appeal, the judgment and decree of the Court of the Principal Subordinate judge, Vijayawada, in O. S. No. 247 of 1983 is in challenge. The defendants are the appellants. The parties are referred to as arrayed in the suit.
( 2 ) THE respondent/plaintiff filed the suit for the relief of specific performance of the agreement of sale dated 15-5-1980 executed by the defendants herein and the father of the 1st defendant by name Koneru Venkata narayana, offering to sell the suit schedule property. According to the plaint averments, the defendants offered to sell the suit schedule property for a consideration of rs. 19,250/-, an amount of Rs. 5,000/- was paid as advance on the date of agreement, the balance of Rs. 14,250/- was to be paid after the defendants obtain the permission from the Urban Land Ceiling Authorities (for short ulc authorities ) and intimate the same to the plaintiff. It was alleged that the defendants have not obtained the said permission and on account of their failure, the plaintiff got issued notices dated 22-1-1983 and 7-2-1983 calling upon the defendants to execute the sale deed after receiving the balance of consideration. Since there was no response, the suit was filed.
( 3 ) THE appellants/defendants filed a written statement admitting execution of the agreement and receipt of Rs. 5,000/ -. However, it has been pleaded that the suit schedule property constituted 1/3rd share purchased by the father of the 1st defendant along with Koneru Vemkatratnam and koneru Nagabhushanam Rao, though the suit schedule property and another 9 1/2 cents fell to the share of the 1st defendant, later he exchanged the same with one koneru Lingaiah long time ago. It was pleaded in the written statement that the 1st defendant was very old at the time of execution of the agreement and he did not inform the 2nd defendant about the exchange, and on enquiry, it emerged that the property was in possession of one lingaiah. It is also pleaded that the ULC authorities have rejected the request of the defendants for grant of permission stating that they have no title to the suit schedule property. The defendants further pleaded that they offered to refund the amount of rs. 5,000/- with 12% interest in view of their incapacity to sell the property.
( 4 ) ON the basis of the pleadings, the trial Court framed the following issues: " (1) Whether the plaintiff is entitled to specific performance asked for in the suit? (2) Whether the exchange pleaded by the 2nd defendant between Koneru lingaiah and the 1st defendant is true, valid and binding on the plaintiff? (3) To what relief?"
( 5 ) ON behalf of the plaintiff, her husband Sri P. Veerabhadram, was examined as PW. 1 and the 2nd defendant was examined as dw. 1. The plaintiff filed documents Ex. A-1 to A-6 and the defendants filed Exs. B-1 to b-5. PW. l has almost spoken to the contents of the plaint. However, DW. l, apart from reiterating the contents of the written statement, has also stated in his evidence that the plaintiff along with one P. Chitti kasulu agreed to purchase 17 1/2 cents in sy. No. 95/8 through agreement of sale dated 2-4-1980 marked as Ex. B-2. Since it emerged that the defendants are not in possession of the same, the other co-purchaser Chitti kasulu has taken back the advance paid by her by filing suit OS. No. 261/84.
( 6 ) ON appreciation of the oral and documentary evidence, the trial Court decreed the suit. The defendants challenged the same in this appeal.
( 7 ) SRI V. Parabrahma Shastri, learned counsel for the appellants/defendants, submits that the defendants were not in possession of the suit schedule property and as such they have no right to execute the sale deed. It is also his contention that the ULC authorities have refused to accord permission to the defendants and in the absence of the same, they cannot be compelled to execute the sale deed, which would be contrary to the provisions of the urban Land (Ceiling and Regulati
