2002 Supreme(AP) 1274

Andhra Pradesh High Court
Judges : DUBAGUNTA SUBRAHMANYAM
Ammisetti Chandram alias Ramachandran - Appellant
Versus
Chodasani Suryanarayana - Respondent
Decided On : 11-07-02

Headnote:

Civil Law – Civil Matter - Pleaded that subsequently D-1 and P. W. 9 received separately balance of sale consideration payable to them and made part payment endorsements - Possession of suit property was not delivered to plaintiff on date of Ex. A-1 agreement - It is further case of plaintiff that after part payments were made towards Ex. A-1, at time of last payment endorsement D-1 and P. W. 9 delivered possession of suit property to him - He also pleaded that P. W. 9 executed a registered sale deed conveying plaint - A schedule property to plaintiff and in spite of several demands, D-1 refused to execute a registered sale deed in favor of plaintiff in pursuance of Ex. A-1 sale agreement - D-2 and D-3 in suit are not parties to sale agreement Ex. A-1. D-1 filed written statement categorically denying execution of Ex. A-1 agreement as well as receipt of sale consideration from plaintiff - According to defendants, D-1 sold plaint B-schedule property to D-2 and D-3 under separate sale deeds - Plaintiff wanted a decree for specific performance against all defendants - It appears that his interim application for temporary injunction in his favor was dismissed by trial Court - Subsequently he filed an amendment petition with a plea that subsequent to dismissal of interim injunction application defendants have trespassed into suit property - He sought additional relief for recovery of possession from all defendants - On pleadings of both parties trial Court settled appropriate issues for trial - Both parties adduced oral and documentary evidence in support of their respective pleas - Trial Court opined that D-1 executed sale agreement, Ex. A-1 - It disbelieved one part payment endorsement said to have been made by D-1 - It decreed suit against D-1 alone - In judgment trial Court did not state that suit is dismissed against other defendants , D-2 and D-3 - However, decree drafted by trial Court in pursuance of judgment indicated that trial Court dismissed suit against D-2 and D-3 - Aggrieved by judgment of trial Court D-1 preferred one appeal before lower appellate Court - Aggrieved by dismissal of suit against D-2 and D-3, plaintiff preferred another appeal - Curiouslu lower appellate Court delivered two separate judgments in two appeals - Lower appellate Court ought to have delivered a common judgment in both appeals clubbing both appeals together inasmuch as both appeals arise out of one and same suit and judgment – Held, Court view these strong circumstances court have observed supra that findings of fact recorded by two Courts below are perverse findings - Both Courts below conveniently ignored crucial evidence of P. Ws. 3 and 9 regarding execution of Ex. A-1 and gave a finding that D-1 executed sale agreement, Ex. A-1. Those findings are not based on legal evidence available on record - Evidence of expert, P. W. 2, what all it can be said is that thumb mark in Ex. A-1 is thumb mark of D. W. 1 - However his evidence is not a substitute for proof of due execution of Ex. A-1 document by D-1. D-1 admittedly is an illiterate person - When he categorically denied execution of Ex. A-1 sale agreement, by mere solitary circumstance that thumb mark in Ex. A-1 is the thumb mark of D-1, without any further proof, Courts below are not entitled to give a finding that D-1 agreed to sell suit property and accordingly executed Ex. A-1 agreement in favour of plaintiff - It is already noticed that P. Ws. 3 and 9 did not at all depose that D-1 received any part of sale consideration from plaintiff- Further trial Court disbelieved one of payment endorsements allegedly made by D-1 after executing Ex. A-1 sale agreement - Thus two Courts below erred seriously in ignoring legal evidence available on record Court of view that perverse findings of fact recorded by two Courts below are liable to be interfered with by this Court, court accordingly hold these points against respondent-plaint and in favor of appellants - Judgments of two Courts below are set aside - Suit in O. S. is dismissed with costs - Respondent-plaintiff shall pay to appellants costs in this Court as well as in two Courts below - Appeal allowed.