Point of law: When cancellation may be ordered - (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled

JUDGMENT :

B. KRISHNA MOHAN, J.

1. Heard Sri. P. Sri Raghu Ram, learned senior counsel appearing for the appellant and Sri. A.V.V.S.N. Murthy, learned counsel appearing for the respondent No. 1.

2. This second appeal arises against the decree and judgment, in A.S. No. 173 of 2012 on the file of the court of IV Additional District Judge, Nellore, dated 06.02.2016 confirming the judgment and decree in O.S. No. 97 of 2006 on the file of the court of Senior Civil Judge, Kavali, dated 17.10.2012.

3. The appellant herein is the 2nd respondent in the first appeal and the 2nd defendant in the suit. Similarly the 1st respondent herein is the 1st respondent in the first appeal and the plaintiff in the suit. The other respondents 2 to 5 are the respondents 3 to 5 in the appeal and defendants 4 to 6 in the suit.

4. For the sake of convenience the parties herein are referred as they were arrayed in the suit before the trial court.

5. Originally, the plaintiff initiated action in O.S. No. 97 of 2006 on the file of the court of Senior Civil Judge, Kavali seeking for specific performance of an agreement of sale, dated 21.04.2006, against the 1st defendant to execute a registered sale deed in favour of the plaintiff at his expenses within a time fixed by the court and in default thereof cause the execution of the registered sale deed by the court itself and costs.

It is the case of the plaintiff that the 1st defendant sold the plaint schedule property to the plaintiff under an agreement of sale, dated 21.04.2006 for a valuable consideration of Rs. 1,96,000/- under a Bill makhta; the plaintiff paid Rs. 96,000/- as an advance amount on the very same day as per the terms and conditions the plaintiff has to pay the balance of sale consideration within two months from the date of agreement on or before 20.06.2006 and obtain registered sale deed from the 1st defendant at the expenses of the plaintiff and time is the essence of the contracts; plaintiff is ready and willing to perform his part of the contract under the said agreement of sale dated 21.04.2006; whereas the 1st defendant has been postponing to perform his part of contract on some pretext or the other, then the plaintiff has got issued the legal notice demanding him to receive the balance of sale consideration and register the plaint schedule property in his favour and the 1st defendant gave a reply notice denying the stand of the plaintiff. Hence the suit.

6. Inter-alia the 1st defendant filed a written statement contending that the plaint schedule property was not offered to sell to the plaintiff, a reply notice on 14.06.2006 was given to the plaintiff's notice, as he has got another land adjacent to the plaint schedule property developed an intention to grab the same by pressing into service the agreement of sale, dated 21.04.2006 which is a fabricated one and specifically averred that prior to the filing of the suit itself he sold away the plaint schedule property to one Gunji Srinivasulu, under a registered sale-deed, dated 10.05.2006 for a valuable sale consideration of Rs. 72,000/- and therefore sought for dismissal of the suit.

7. During the pendency of the suit the 1st defendant died leaving behind the 3rd defendant as his legal heir who is the son of the deceased-1st defendant. Since the deceased-1st defendant sold the plaint schedule property to one Gunji Srinivasulu, the said person was also added as party-2nd defendant in the suit. D4 and D5 the daughters of the 1st defendant and D6 the son of Late Kunchala Kondamma who is the deceased daughter of the deceased-1st defendant were also added as defendants 4 to 6 in the suit.

8. The 2nd defendant also filed a separate written statement contending that he is a bona fide purchaser of the plaint schedule property and the title of the said property was conveyed to him under a registered sale deed dated 10.05.2006 and he is in possession and enjoyment of the same from the said date. It is further contended by the 2nd defendant that the agreeme