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1981 Supreme(AP) 312
Andhra Pradesh High Court
Judges : K.JAYACHANDRA REDDY, K.RAMACHANDRA RAO
Budda Veeraiah - Appellant
Versus
K.Lakshminarasimha Reddy - Respondent
Decided On : 12-13-81
The appellate court has the power to pass a decree in favor of a non-appealing party under Order 41, Rule 33 C. P. C. when it interferes with or modifies the decision of the lower court, in order to do complete justice between the parties.
Headnote:
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - EXECUTION OF AGREEMENT - FORGED DOCUMENT - REFUND OF CONSIDERATION - ORDER 41, RULE 33 C. P. C. - POWER OF APPELLATE COURT TO PASS DECREE IN FAVOUR OF NON-APPEALING PARTY.
Fact of the Case:
Plaintiffs filed a suit for specific performance of an agreement to sell, alleging that the 1st defendant agreed to sell half share in certain lands to the plaintiffs. The 1st defendant denied the execution of the agreement and claimed that the entire land belonged to him as his ancestral property. The trial court dismissed the suit, holding that the agreement was not a true document. On appeal, the single Judge held that the agreement was true but dismissed the suit for specific performance as the plaintiffs did not seek cancellation of the registered sale deed executed by the 1st defendant in favor of defendants 2 and 3. The plaintiffs appealed.
Finding of the Court:
The court found that the agreement was a forged and fabricated document and that the payment of Rs. 7000 thereunder was not true. The court also held that the plaintiffs were not entitled to the refund of Rs. 7000 as they had failed to establish that the amount was in fact paid by them to the 1st defendant.
Issues: 1. Whether the agreement to sell was executed by the 1st defendant? 2. Whether the plaintiffs were entitled to specific performance of the agreement? 3. Whether the plaintiffs were entitled to refund of the consideration paid under the agreement?
Ratio Decidendi: 1. The court held that the agreement was not executed by the 1st defendant, relying on the evidence of the scribe and the attestors, and the comparison of the disputed signatures with the admitted signatures of the 1st defendant. 2. The court held that the plaintiffs were not entitled to specific performance of the agreement as they did not seek cancellation of the registered sale deed executed by the 1st defendant in favor of defendants 2 and 3. 3. The court held that the plaintiffs were not entitled to refund of the consideration paid under the agreement as they had failed to establish that the amount was in fact paid by them to the 1st defendant.
Final Decision: The court allowed the appeal, set aside the finding of the single Judge that the agreement was a genuine document, and confirmed the finding of the trial court that the agreement was not executed by the 1st defendant. The court also set aside the decree passed by the single Judge directing the 1st defendant to pay the plaintiffs the sum of Rs. 7000/- with interest thereon. The suit was dismissed with costs payable by the plaintiffs to the defendants throughout.
( 1 ) THE plaintiffs are the appellants in this Letters Patent Appeal preferred against the judgment of our learned brother Raguvir J.
( 2 ) THE plaintiffs-appellants filed the suit for specific performance of an agreement to sell, Ex. A-1 dated 14-12-1968 alleged to have been executed by the 1st defendant Muthineni Pedda Ramaiah under which the 1st defendant is alleged to have agreed to sell half share in Ac. 30-27 guntas covered by S. Nos. 209, 214 and 215 situate in Jalalpuram, Suryapet Taluk Nalgonda district to the plaintiffs for a consideration of Rs. 9. 200. 00. The father of the 1st defendant had taken the father of the plaintiffs as illatum son-in-law about 50 years prior to the institution of the suit, and plaintiffs father was given a half share in the suit properties mentioned above, keeping himself the other half share. On the death of their father the plaintiffs inherited his half share while the defendant No. 1 inherited from his father the remaining half share. The properties were divided by metes and bounds between the plaintiffs and defendant No. 1 and they were in possession and enjoyment of their respective shares. While so, the defendant No. 1 sold to the defendants 2 and 3 under a registered sale deed, Ex. B. 1 dated 12-1-1968, the entire properties including the plaintiffs share. Thereafter, the 1st defendant filed an application before the Tahsildar, Suryapet under Section 47 of the Andhra Pradesh (Telengana Area) Tenancy and Agriculture Lands Act before the Tahsildar for permission to alienate the said land to defendants 2 and 3. The Plaintiffs came to know of the said proceedings on 31-1-1968 and filed objections before the Tahsildar objecting to the grant of permission for the sale of their half shares. While so, on the intervention of some elders. D. Was. 2,. 3 and 4 a compromise was entered into under which the plaintiffs were recognised as the owners of the half share in the said lands and the 1st defendant agreed to sell his half share to the plaintiffs and this compromise was filed as Ex. A-10 dated 27-9-1968, the original of which is Ex. A-11 and the Tahsildar by order Ex. A-8 Dt. 15-11-1968 recorded the compromise and accorded permission to the 1st defendant to alienate his half share in favour of the plaintiffs. It is alleged that pursuant to the said compromise the 1st defendant is alleged to have executed the suit agreement. Ex. A-1 dated 14-12-1968 agreeing to sell his half share in the lands in favour of the plaintiffs for Rs. 9,200. 00. The case of the plaintiffs is that on the very day, they paid a sum of Rs. 7000. 00 to the 1st defendant and agreed to pay the balance of sale consideration at the time of registration. The plaintiffs stated that they were ready and willing to perform their part of the contract, but the defendant No. 1 did not come forward to execute the sale deed. It is also alleged that on 8-1-1971 the defendants tried to trespass upon the portion of the land agreed to be sold by the 1st defendant and the plaintiffs intervened and prevented the trespass. Thereafter, the plaintiffs filed the suit for specific performance of the agreement to sell, or in the alternative, for payment of compensation.
( 3 ) THE 1st defendant filed a written statement denying the Illatom adoption of the plaintiffs father and also denying the execution of the suit agreement Ex. A-1. He alleged that the plaintiffs had no manner of right, title or interest in the suit lands, and that the entire land belonged to him as his ancestral property. He also denied the compromise alleged to have been entered into before the Tahsildar. He stated that he had sold the lands to defendants 2 and 3 for rupees 24,000/- and that he had no longer any subsisting interest in the said lands. He alleged that the defendants 2 and 3 yielded to the pressure and influence of the Patwari and Konareddy and agreed to sell the lands to the plaintiffs for Rs. 24,000. 00. The contents of the compromise peti
