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Andhra Pradesh High Court
Judges : P.S.NARAYANA
MOHAMMED MASTHAN - Appellant
Versus
ABDUL REHMAN - Respondent
Decided On : 04/04/2007
SA 281 Of 1997
Transfer of Property act, 1882 – Section 53-A – Code of Civil procedure – Order XX Rule 12 – Appellant-1st defendant died during the pendency of second appeal and appellants 2 to 12 were brought on record as legal representatives of deceased 1st appellant by Order in C. M. P. second appeal as against R. 5, R. 6 and R. 7 was dismissed for default – But, however, it is stated that main contest is between r. 1 to R. 4 – Plaintiffs in O. S. and at present legal representatives of appellant-1st defendant – It is also stated that these parties claiming under 1st defendant as tenants had been shown as defendants 2, 3 and 4 and second appeal to be heard on merits – Contentions of Sri M. Adinarayana raju :sri Adinarayana Raju, learned counsel representing legal representatives of 1st appellant-appellants 2 to 12 had taken this Court through respective pleadings of parties and evidence available on record and also the findings which had been recorded by Court of first instance and the findings recorded by the appellate Court and would submit that it is a clear case of benefits of Section 53-A of Act, 1882, being available to appellant-1st defendant and Court of first instance recorded proper findings which had been reversed by appellate Court on unsustainable grounds – Even if by date of putting forth such defence under Section 53-A of Act, 1882 defendants could not have filed a suit for specific performance and even if such claim is otherwise barred by limitation, it would not seriously alter situation as far as applicability of doctrine of part performance is concerned – Held, There cannot be any quarrel relating to the propositions of law laid down in decisions specified above – At outset it is pertinent to note that specific case of plaintiffs, as pleaded and as deposed by P. W. 1, is that their father borrowed an amount from 1st defendant and delivered suit schedule house in lieu of interest to be paid thereunder and they offered to repay Rs. 1,500/- to 1st defendant and requested to deliver house again and further specific stand taken by P. W. I is that it is not true to say that his father agreed to sell property for Rs. 3,000/- and he is ready to pay Rs. 1,500/- to defendants if they vacate and deliver possession of house – It is also his evidence that he had been paying municipal taxes. Ex. B. 2 to Ex. B. 5 are tax receipts and Ex. B. 6 and Ex. B. 7 are demand notices issued by Municipality – He had constructed house in year 1968 and he had been residing therein – It is also his case that plaintiffs have knowledge about his possession and they never came and never demanded to vacate house – This witness also deposed in detail about Ex. B. 8 – This witness was cross-examined at length – Scribe of Ex. B. 8 was examined as d. W. 2, who had deposed that he had scribed Ex. B. 8 and Abdul Sattar told him that Masthan paid Rs. 1,500/- already and as per understanding Masthan has to pay Rs. 1,500/- at time of registration. Sattar signed in his presence – After transaction, he had put his signature – This witness also was cross-examined in detail. DW. 3, attestor of Ex. B. 8, deposed that Ex. B. 8 was written at Market i. e. , at Sattar Shop and had given the details relating to same. D. W. 4 deposed that he know 1st defendant and he issued reply on behalf of 1st defendant under ex. B. 1 and three days after reply notice was issued by him, 1st defendant produced the agreement Ex. B. 8 before him and he had perused contents – In light of this evidence available on record and also taking into consideration fact that except evidence of P. W. 1, there is no other evidence on behalf of plaintiffs – Courts below believed Ex. B. 8 and hence, it is clear that plaintiffs had not approached court with true facts. Ex. A. 1 is extract of sale deed Ex. A. 2 is office copy of registered lawyers notice– Apart from this aspect, of matter, these are certain of crucial admissions which can be taken into consideration for recording appropriate findings.(Paras 17 and 18)
( 2 ) THE appellant-1st defendant died during the pendency of the second appeal and appellants 2 to 12 were brought on record as the legal representatives of the deceased 1st appellant by Order dated 3-11-2005 in C. M. P. No. 2745/2005. The second appeal as against R. 5, R. 6 and R. 7 was dismissed for default. But, however, it is stated that the main contest is between r. 1 to R. 4 - the plaintiffs in O. S. No. 268/84 and at present the legal representatives of appellant-1st defendant. It is also stated that these parties claiming under the 1st defendant as tenants had been shown as defendants 2, 3 and 4 and hence, the Counsel on record submitted that the second appeal to be heard on merits.
( 3 ) CONTENTIONS of Sri M. Adinarayana raju :sri Adinarayana Raju, the learned counsel representing the legal representatives of the 1st appellant-appellants 2 to 12 had taken this Court through the respective pleadings of the parties and the evidence available on record and also the findings which had been recorded by the Court of first instance and the findings recorded by the appellate Court and would submit that it is a clear case of the benefits of section 53-A of the Transfer of Property act, 1882, being available to the appellant-1st defendant and the Court of first instance recorded proper findings which had been reversed by the appellate Court on unsustainable grounds. The learned Counsel also would submit that even if by the date of putting forth such defence under Section 53-A of the Transfer of Property Act, 1882 the defendants could not have filed a suit for specific performance and even if such claim is otherwise barred by limitation, it would not seriously alter the situation as far as the applicability of the doctrine of part performance is concerned. The learned counsel also would submit that in the peculiar facts and circumstances, the finding recorded by the appellate Court that the 1st defendant was not ready and willing to perform his part of the contract is an unsustainable finding and the fact that the father of the plaintiffs and the 1st defendant were close friends and in view of the position in which the father of the plaintiffs had been placed at the relevant point of. time, the 1st defendant could not insist upon the execution of the sale deed as such, these aspects should have been taken note of by the appellate Court while appreciating the applicability or otherwise of the doctrine of part performance to a case of this nature. The learned Counsel also pointed out to several of the admissions made by P. W. 1 and would contend that except the evidence of P. W. I, there is no other evidence available on record whereas apart from the evidence of D. W. I, the other evidence d. W. 2, D. W. 3 and D. W. 4 also is available on record. The learned Counsel also hadi taken this Court through the contents of ex. B. 8 and further pointed out to Exs. B. 1 to Ex. B. 7 also and would maintain that the property tax receipts definitely would go to show that to the knowledge of the plaintiffs, the 1st defendant had been in possession and enjoyment of the property for sufficiently a long time and hence decreeing the suit for recovery of possession at this stage would cause serious prejudice to the legal representatives of the appellant-1st defendant who are in possession of the property in question in pursuance of the agreement of sale. The learned Counsel also had pointed out to Ex. A. 1 and Ex. A. 2 and further would maintain that the averments in the plaint and also the evidence of P. W. 1 would clearly go to show that P. W. 1 did not approach the Court with clean hands but suppressed all the facts and h
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