2007 Supreme(AP) 1142
Andhra Pradesh High Court
L. NARASIMHA REDDY, J.
Muslareddygaru Subbamma and others - Appellant
Versus
Mulla Ismail and another - Respondent
SA Nos.141 and 997 of 1998
Decided on: 14th November, 2007
Advocate Appeared:
Y. Srinivasa Murthy, Syed Sharif Ahmed
Headnote:(A) Specific Relief Act, 1963- Section 38- Suit for declaration of title and perpetual injunction- without seeking recovery of possession, is untenable, when possession has been already parted. [Para 19]
(B) Limitation Act 1963, Article 54- Suit for Specific Performance -Computation of starting points limitation of three years is the date specified for performance of agreement, or date on which refusal is communicated. [Para 20]
(C) Limitation Act 1963, Article 54; Transfer of Property Act 1882, Section 53-A- Plea of limitation in suit for specific performance, virtually pales into insignificance, once transferee acquires title through adverse possession, or where a plea under Section 53-A is raised- Denial of relief of specific performance is in teeth of principle underlying Section 53-A. [Para 21]
Both the second appeals are between the same parties and as regards the same property. They arise out of O.S. Nos. 10 of 1984 and 33 of 1988 on the file of the Subordinate Judge, Nandyai. The appellants are the legal representatives of one Mr. Bhogi Reddy. He was the sole defendant in the 1st suit and sole plaintiff in the second suit.
2. Respondents 1 and 2 are the grandsons of one late Jaffer Saheb. He was the absolute owner and possessor of an extent of about Acs.2.80 cents of land in Survey No.180 of Kanala Village. The respondents filed O.S. No.10 of 1984 in the Court of Subordinate Judge, Nandyal, against Mr. Bhogi Reddy, for the relief of declaration of title and perpetual injunction as regards the said land. It was pleaded that, Mr. Jaffer Saheb, had executed two gift deeds on 16.3.1981 in their favour, donating the suit schedule property and delivered possession to them. According to them, ever since the date of gift deeds, they are in possession and enjoyment of the property and, it was alleged that Bhogi Reddy was interfering with their possession.
3. A written statement was filed in the suit stating that Jaffer Saheb executed an agreement of sale on 26.9.1964 offering to sell the land to Bhogi Reddy for a consideration of Rs. 1,000/-, per acre, and subsequent thereto, the further amounts were paid on 4.10.1964 and 29.5.1965. It was stated that the entire consideration was paid and possession of the property was delivered, and that there was absolutely no basis for the claim in the suit.
4. On his part, Bhogi Reddy also filed O.S. No.33 of 1988 in the same Court, for the relief of specific performance of the agreement of sale. The contents of the plaint in this suit were similar to the written statement in O.S. No.10 of 1984 and vice versa. An additional plea as to limitation was raised in the written statement filed in O.S. No.33 of 1988.
5. With the consent of parties, both the suits were clubbed and evidence was recorded in O.S. No.10 of 1984. During the pendency of the suit, Bhogi Reddy died and his legal representatives i. e., the appellants herein were brought on record. Through a common judgment, dated 30.7.1994, the trial Court decreed O.S. No.10 of 1984 and dismissed O.S. No.33 of 1988. Aggrieved thereby, the appellants filed A.S. Nos.24 and 30 of 1994 against the judgments and decrees in O.S. Nos.10 of 1984 and 33 of 1988, respectively, in the Court of II Additional District Judge, Kurnool. The appeals were dismissed on 30.12.1997, through a common judgment. While S.A No.141 of 1998 is filed against the judgment in O.S. No.24 of 1994, S.A No.997 of 1998 is filed against AS. No.30 of 1994.
6. Sri Y. Srinivasa Murthy, learned Counsel for the appellants, submits that the Courts below erred in decreeing the suit filed by the respondents and dismissing the one filed by the appellants. He contends that the evidence on record clearly demonstrates that the agreement of sale marked as Ex.B.1, was proved and the possession of the appellants was admitted by none other than the Jaffer Saheb himself, as is evident from Exs.B.6, B.7 and B.8. According to him, the appellants perfected their title by way of adverse possession. Learned Counsel points out that when execution of agreement of sale is proved and the appellants are in possession of the suit schedule property, the only alternatives was to grant the decree for specific performance. He contends that suit for injunction was not tenable when the possession has already been parted and that the plea of limitation raised by the respondents cannot be accepted in the facts and circumstances of the case.
7. Sri Syed Sharif Ahmed, learned Counsel for the respondents, submits that the suit filed by the appellants was barred by limitation, since it was filed nearly decades, after the date of alleged agreement of sale. He contends that during his lifetime, Jaffer Saheb, who figured as 1st defendant in O.S. No.33 of 1988, filed a written statement denying the agreement of