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2020 Supreme(AP) 180
IN THE HIGH COURT OF ANDHRA PRADESH
M.VENKATA RAMANA, J.
Vudagiri Venkata Rao, Vizianagaram Dist - Appellant
Versus
Kedarisetty Venkataramana and Ors - Respondent
A.S.No. 531 of 2008
Decided On : 20-04-2020
Point of Law: It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it.
Headnote:
Indian Contract Act, 1872 - Suit for the relief of specific performance - Appellant filed suit for relief of specific performance basing on an agreement for sale, to direct the respondents to execute a regular sale deed and to register pursuant thereto of the suit land and in failing to do so to get the same registered through the process of the Court - Claim of appellant was rejected dismissing the suit by the decree and judgment by the Court of learned Senior Civil Judge - Hence, appeal was preferred - Held, Upon reappraisal and evaluation of evidence on record, in view of the findings on all the above points, the appeal has to be allowed setting aside the decree and judgment of the trial Court - Hence, the suit of the appellant has to be decreed as prayed granting relief of specific performance in terms of directing him to deposit the balance sale consideration within a specified period, calling upon the respondents to execute a regular sale deed in his favour as well as to register and on their failure to do so, the trial court be directed to execute a sale deed in terms thereof - Appellant (plaintiff) is directed to deposit the balance sale consideration within two months from this day - Appellant is entitled for costs in the suit as well as in this appeal throughout payable by the respondents and the respondents shall bear their own costs throughout - Appeal is allowed.
Facts of the Case:
Appellant laid the suit for the relief of specific performance basing on an agreement for sale dated 09.10.2004, to direct the respondents to execute a regular sale deed and to register pursuant thereto of the suit land and in failing to do so to get the same registered through the process of the Court. Alternatively, he requested to direct refund of alleged advance sale consideration of Rs.3.50 lakhs by the respondents with future interest at 24% p.a. from the date of the agreement for sale till realization as well as compensation of such amount not exceeding the suit value for breach of contract as well as costs.
Finding of the Court:
Upon reappraisal and evaluation of evidence on record, in view of the findings on all the above points, the appeal has to be allowed setting aside the decree and judgment of the trial Court - Hence, the suit of the appellant has to be decreed as prayed granting relief of specific performance in terms of directing him to deposit the balance sale consideration within a specified period, calling upon the respondents to execute a regular sale deed in his favour as well as to register and on their failure to do so, the trial court be directed to execute a sale deed in terms thereof - Appellant (plaintiff) is directed to deposit the balance sale consideration within two months from this day - Appellant is entitled for costs in the suit as well as in this appeal throughout payable by the respondents and the respondents shall bear their own costs throughout
Result: Appeal is allowed.
JUDGMENT :
1. The plaintiff is the appellant. The 2nd respondent is the wife of the 1st respondent. They as well as the 3rd respondent were the defendants.
2. The 1st respondent admittedly is the owner, who had right, title and interest to the plaint schedule property. It is to an extent of Ac.0-35 cents described as a dry land in S.No.180/3 at Tummikapalli village, Kothavalasa Mandal, Vizianagaram District within the specific boundaries mentioned in the plaint schedule. It shall be referred to hereinafter as, ‘the suit land’, for convenience.
3. The appellant laid the suit for the relief of specific performance basing on an agreement for sale dated 09.10.2004, to direct the respondents to execute a regular sale deed and to register pursuant thereto of the suit land and in failing to do so to get the same registered through the process of the Court. Alternatively, he requested to direct refund of alleged advance sale consideration of Rs.3.50 lakhs by the respondents with future interest at 24% p.a. from the date of the agreement for sale till realization as well as compensation of such amount not exceeding the suit value for breach of contract as well as costs.
4. The appellant as well as the respondents 1 and 2 are inter 2nd related. The wife of the appellant is one of the sisters of the respondent. Thus, the appellant and the 1st respondent are co-brothers. 2nd P.W.2 Sri Kandula Ramakrishna is one of the brothers of the respondent and wife of the appellant. P.W.3 Sri Kandula Venkata Surya Rao is their cousin brother. P.W.4 Sri Kedarisetty Demullu is also related to these parties.
5. The claim of the appellant was rejected dismissing the suit by the decree and judgment dated 14.03.2008 by the Court of learned Senior Civil Judge, Vizianagaram. Against it, the appellant has preferred this appeal.
6. It is desirable to consider the claims of the parties set out in their respective pleadings before embarking upon evaluating and analyzing the evidence on record.
7. The case of the appellant in the plaint was that the 1st respondent suggested that he would sell him the suit land since he was in need of money, and that it would fetch good price in future. It was the further case of the appellant in the plaint that though the real market value was far below, he as well as the 1st respondent along with their relations had deliberations in this respect and the sale price was arrived at Rs.25,000/-per cent, in all Rs.8,75,000/-and out of which the appellant paid Rs.3,50,000/-to the 1st respondent as advance. The appellant further pleaded in the plaint that in terms thereof, the suit agreement for sale was reduced to writing upon payment of such advance on 09.10.2004, which the 1st respondent executed in presence of their relations, who acted as attestors as well as the scribe. It was further agreed in between these parties, as per the averments in the plaint that the balance sale consideration should be paid upon taking out measurements of the suit land at the time of registration without fixing any specific time for execution of the sale deed. Even though by January, 2006 the value of the suit land did not raise even half of the agreed rate, as per the averments in the plaint, the appellant in order to keep up his promise, pooled up sufficient amount to pay the balance consideration and requested the 1st respondent at the end of February, 2006 and through his relations during 1st week of March, 2006 to execute a sale deed upon receiving balance sale consideration expressing his ready and willingness. When the attitude of the 1st respondent was found to dodge, according to the averments in the plaint, the appellant got issued a legal notice dated 27.03.2006 requesting the 1st respondent to perform his part of the contract specifically informing that he was ready and willing to perform his part thereof, to which he got issued a reply dated 08.04.2006 denying the execution of agreement for sale. Thereupon, the averments in the plaint are
