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ANDHRA PRADESH HIGH COURT
M. Venkata Ramana, J.
K. Koteswara Rao Died
and 10 Others Petitioners
Versus
Kotha Subbaiah – Respondent
Second Appeal No.1514 of 2018
Decided on 30.12.2021
Agreement to Sell – Suit for Specific Performance – Comparison of signatures by Court is always a hazardous course – Trial Judge in Judgment did not mention his proficiency in comparison of signatures and hand-writings and science relating to it – Comparison cannot be on such basis and holding that even to naked eye, signature appearing on agreement for sale, is that of 1st appellant – Nature of appreciation of material on record, particularly, with reference to application of Section 73 of Indian Evidence Act, by Courts below is not justified – Court should not as a matter of course loosely resort to application of Section 73 of Indian Evidence Act – When burden of proof rests with respondent-plaintiffs to prove agreement for sale, it cannot be shifted to appellants-defendants – Reappraisal of material on record is not in terms of Section 96 CPC and Order 41 Rule 31 as well as Rule 33 CPC – Judgments of both Courts below are required to be interfered with in second appeal – Decrees and judgments of both Courts below set aside and suit dismissed. [Indian Evidence Act, 1872 – Section 73] (Paras 42, 45, 48, 53, 54, 55 and 56 )
Result: Appeal allowed.
JUDGMENT
The defendants are the appellants.
2. The respondent as the plaintiff laid the suit for specific performance of contract basing on an alleged agreement for sale dated 13.06.1998 against the appellants 1 to 3.
3. The plaint schedule sets out items 1 to 10 as full extents in all Ac.11.75 cents and items 11 to 13 in all Ac.5.91 cents. Thus, total extent is Ac.17.66 cents. These lands are in Mitnala village (they shall be hereinafter referred to as ‘the suit lands’).
4. Appellants 1 and 3 died during pendency of the suit. Appellants 8 to 11 are the legal representatives of the 1st appellant. The 3rd appellant died on 23.02.2003. His legal representatives are appellants 4 to 7.
5. The contention of the respondent at the trial was that the 1st appellant had agreed to sell the suit lands to him for Rs.20,000/- per acre and upon receiving a major part of sale consideration, viz. Rs.3,33,200/- executed an agreement for sale on 30.06.1998 in his favour. Further contention of the respondent at the trial was that the 1st appellant had agreed to get the suit lands measured on or before 31.03.1999 and upon receiving balance sale consideration, agreed to execute sale deeds and register, while also undertaking to deliver possession of these lands. Claiming that he has been always ready and willing to perform his part of contract and that the 1st appellant did not come forward to perform his part of contract to get the lands measured as well as to execute a registered sale deed, he got issued a legal notice dated 21.03.1999 demanding him to perform his part of contract and execute the sale deed. This legal notice was not served on the 1st appellant.
6. Further contention of the respondent at the trial was that the 1st appellant had sold items 1, 5, 6 and 8 of the suit lands in favour of the 2nd appellant under a registered sale deed dated 12.10.1999 and that he also sold items 2 to 4, 7 and 9 to the 3rd appellant on the same day under registered sale deeds that are collusive and brought out to defeat his interest under the agreement for sale. He further contended that appellants 2 and 3 should also execute the sale deeds, along with the 1st appellant in respect of the suit lands. Thus setting out, he sought relief in the suit.
7. The 1st appellant resisting the claim of the respondent denied execution of the agreement for sale dated 30.06.1998 and that it was brought out by the respondent with the help of Sri Brahmananda Rao, who is the brother of the 1st appellant. He further contended that before filing the suit, in or about April or May 1999, the respondent and Sri Brahmananda Rao demanded him a part of his property and that he refused to do so. He further contended that a few days later, both of them again came to him and showed a blank stamp paper containing a signature in his name, threatening that they would make use of it against him if he did not convey property to Sri Brahmananda Rao. Thus, he alleged that his brother Sri Brahmananda Rao and the respondent fabricated the agreement for sale forging his signature basing on which, the suit was laid.
8. The 1st appellant also contended that items 10 to 13 of the suit lands did not belong to him. He further stated that he had entered into an agreement for sale in respect of items 1 to 9 of the suit lands with one Sri Allam Narayana on 14.05.1992 agreeing to sell them at Rs.30,000/- per acre, upon receiving Rs.65,000/- as advance and that pursuant to it, he executed sale deeds in favour of the 2nd appellant, who is the daughter of Sri Allam Narayana convenying items 1, 5, 6 and 8 and another sale deed in favour of the 3rd appellant conveying items 2, 3, 4, 7 and 9 of the suit lands under a registered sale deed dated 12.10.1999. Thus, the 1st appellant denied his liability in respect of the alleged agreement for sale set up by the respondent.
9. On behalf of the appellants 2 and 3, the contention set forth at the trial was asserting purchase of their respective extents from th
Comparison of signatures by Court is always a hazardous course. Court should not as a matter of course loosely resort to application of Section 73 of Indian Evidence Act.
The appellate court ruled that the agreement for sale was not proved and lacked consideration, leading to the dismissal of the specific performance suit.
The court affirmed that specific performance is a discretionary remedy, requiring the plaintiff to prove the validity of the contract and readiness to perform.
The plaintiff must prove the validity of the sale agreement and his readiness and willingness to perform the contract in a specific performance case.
When a defendant alleges coercion regarding the execution of a document, the burden is on them to lead evidence. A failure to enter the witness box to cross-examination results in an adverse presumpt....
The plaintiff failed to establish the existence of a binding contract or prove payment of earnest money for specific performance, leading to the dismissal of his claims.
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