Back
2017 Supreme(AP) 60
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
U. Durga Prasad Rao, J.
Seelam Mallaiah (died) per LRs. and others - Appellants
Vs.
P. Narasinga Rao (died) per LRs. and others - Respondents
C.C.C.A No. 57 of 1999
Decided On : 28-02-2017
For the Appellants : T. Viswanadha Sastry
For Respondents: Meherchand Nori
Headnote:
Indian Stamp Act - Article 47-A of Schedule I-A - Sections 36, 5 and 6 - Registration Act, 1908 - Section 17(1), sub-section (g) - Court below preferred the instant appeal aggrieved by the common judgment dated passed by V Senior Civil Judge City Civil Court whereby and the learned Judge decreed the plaintiffs suit filed for specific performance of agreement of sale dated - defendant is the absolute owner of suit schedule property bearing House admeasuring yards situated which was purchased by him through registered sale deed dated and ever since he had been in possession and enjoyment of the same defendant entered into an agreement of sale dated with the plaintiffs in respect of suit schedule property for total consideration of and received - Towards advance agreeing to receive balance amount at the time of registration - After entering the agreement the defendant evicted the tenants and delivered physical possession of the suit schedule property to the plaintiffs and since then the plaintiffs are in possession and enjoyment of the same - Plaintiffs is that while the matter stood defendant tried to alienate the suit schedule property to third parties hence they lodged a criminal complaint before and they also issued a notice to the defendant asking him to execute registered sale deed stating that they were ready and willing to pay the balance sale consideration at the time of registration, but there was no response from the defendant side - Plaintiffs is that when the defendant tried to dispossess them from the suit premises - Injunction and they also filed for interim injunction which was granted - Despite the injunction order the defendant tried to alienate the suit property to third parties - Held, Agreement to sell shall hold good but since Ex.A3 is de-exhibited from the record, the plaintiffs cannot claim possession of the suit property as recited in However since Ex.A1 is held to be genuine and as the plaintiffs along with specific performance sought for granting any other relief this Court in the interest of justice can exercise its discretion and grant delivery of possession - Agreement to sell can only be used as a protective shield but not as a sword to file injunction suit and the plaintiff has to seek alternative and efficacious relief of specific performance - the argument that since executed by defendant in of one was not registered, the same is not valid has no force and significance because the suit was filed by the plaintiffs directly against the defendant and not against his GPA holder and the defendant also contested the suit by himself but not through - Appeal is dismissed.
U. DURGA PRASAD RAO, J.
The unsuccessful defendant in the Court below preferred the instant appeal aggrieved by the common judgment dated 16.12.1998 in O.S No. 630 of 1988 passed by V Senior Civil Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Judge decreed the plaintiffs suit filed for specific performance of agreement of sale dated 19.12.1986
2. The parties in this appeal are referred as they stood before the trial Court in O.S No. 630 of 1988 and defendants 2 and 3 in O.S No. 901 of 1995 are referred as third parties.
3. The factual matrix of the case is thus:
(a) The case of the plaintiffs is that defendant is the absolute owner of suit schedule property bearing House No. 4-7-412 to 415 admeasuring 110 sq. yards situated at Esamiah Bazar, Hyderabad which was purchased by him through registered sale deed dated 22.12.1962 and ever since he had been in possession and enjoyment of the same. While so, the defendant entered into an agreement of sale dated 19.12.1986 (Ex.A1) with the plaintiffs in respect of suit schedule property for total consideration of Rs. 1,80,000/- and received Rs. 1,40,000/- towards advance, agreeing to receive balance amount of Rs. 40,000/- at the time of registration. After entering the agreement the defendant evicted the tenants and delivered physical possession of the suit schedule property to the plaintiffs on 05.03.1988 and since then the plaintiffs are in possession and enjoyment of the same.
(b) The further case of the plaintiffs is that while the matter stood thus, the defendant tried to alienate the suit schedule property to third parties hence, they lodged a criminal complaint on 05.04.1988 before the SHO, Sultan Bazar and they also issued a notice to the defendant asking him to execute registered sale deed stating that they were ready and willing to pay the balance sale consideration at the time of registration, but there was no response from the defendant side.
(c) The further case of the plaintiffs is that when the defendant tried to dispossess them from the suit premises on 02.04.1988 and 05.04.1988, they filed suit O.S No. 1365 of 1988 (renumbered as O.S No. 901 of 1995) on the file of VI Assistant Judge, City Civil Court, Hyderabad for perpetual injunction and they also filed I.A No. 275 of 1988 for interim injunction which was granted. Despite the injunction order the defendant tried to alienate the suit property to third parties.
Hence the suit.
(d) The defendant filed written statement denying execution of Ex.A1 agreement; receipt of advance amount of Rs. 1,40,000/- and delivery of physical possession. His case was that he never intended to sell the suit schedule property to the plaintiffs, but they by force, compulsion and playing fraud obtained his signatures on blank papers. The plaintiffs paid Rs. 90,000/- on different dates and got released the documents. He also contended that Ex.A1 suit agreement is vexatious. He never delivered possession of the suit property to the plaintiffs, but they filed police complaint and forcibly thrown him out from the suit schedule property. The suit agreement which was obtained on blank papers, was bad and unenforceable. He also contended that suit was bad for non-joinder of parties such as D. Balaiah and others who are parties to the suit O.S No. 1365 of 1988 (renumbered as O.S No. 901 of 1995).
(e) Basing on the above pleadings, the trial Court framed the following issues:
(1) Whether the plaintiffs were always ready and willing to perform their part of the contract?
(2) Whether the plaintiffs are entitled for specific performance of agreement of sale dt.19.12.1986?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) To what relief?
(f) During trial PW.1 was examined and Exs.A1 to A13 were marked on behalf of plaintiffs. DWs.1 to 3 were examined on behalf of defendant but no documents were marked.
(g) The trial Court after hearing both sides and on considering the oral and documentary evidence, on issue No. 3 o
