APHC010192422011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3397]

(Special Original Jurisdiction)

WEDNESDAY ,THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 396/2011 Between:

Tentu Raja Rao ...APPELLANT AND Boddu Prabhakara Rao ...RESPONDENT Counsel for the Appellant:

1. NIMMAGADDA SATYANARAYANA Counsel for the Respondent:

1. S SYAMSUNDER RAO The Court made the following:

VENUTHURUMALLI GOPALA KRISHNA RAO,J THE HON’BLE SRI JUSTICE V.GOPALA KRISHNA RAO SECOND APPEAL No.396 OF 2011

Judgment:

This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the decree and Judgment, dated 03.02.2011 in A.S.No.106 of 2010, on the file of the Principal District Judge, West Godavari at Eluru, setting aside the decree and Judgment, dated 18.11.2009 in O.S.No.418 of 2005, on the file of Principal Senior Civil Judge, Eluru, by granting primary relief.

2. The appellant herein is the defendant and the 1^st respondent herein is the plaintiff in O.S.No.418 of 2005, on the file of Principal Senior Civil Judge, Eluru. It is to be noted here that the 1^st respondent/sole plaintiff died during the pendency of this appeal and his legal representatives are brought on record as respondent Nos.2 to 4.

3. The sole plaintiff initiated action in O.S.No.418 of 2005, on the file of Principal Senior Civil Judge, Eluru, with a prayer for specific performance of agreement of sale, dated 07.08.2002 against the defendant for possession of the property and for alternative relief of refund of amount along with interest.

4. The learned Principal Senior Civil Judge, Eluru, decreed the suit with costs granting alternative relief of refund of the sale consideration paid by the plaintiff with interest at 12% per annum from 10.10.2002 till realization. Felt aggrieved of the same, the plaintiff in the above said suit filed A.S.No.106 of 2010, on the file of the Principal District Judge, West Godavari at Eluru. The learned Principal District Judge, West Godavari at Eluru, allowed the appeal with costs, setting aside the decree and judgment passed by the learned Principal Senior Civil Judge, Eluru, by granting primary relief. Aggrieved thereby, the unsuccessful defendant approached this Court by way of second appeal.

5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit.

6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.418 of 2005, is as follows:

The defendant is the absolute owner of an extent of Ac.1-42 cents in R.S.No.138/10 of Satyavole village i.e., schedule property. The defendant in order to discharge his debts offered to sell the said land to the plaintiff for a sum of Rs.2,20,875/- i.e., Rs.1,55,000/- per acre and the plaintiff agreed to purchase the same. The defendant received a sum of Rs.1,00,000/- as advance from the plaintiff and executed an agreement of sale, dated 07.08.2002 in favour of the plaintiff and he agreed in the agreement that he will got measure the land and receive the balance consideration and execute the registered sale deed on or before 10.10.2002. The plaintiff paid further a sum of Rs.90,000/- on 29.09.2002 after measuring the land and the said payment was also endorsed on the back of the agreement of sale. Since the date of final payment made on 10.10.2002, the plaintiff has been requesting the defendant to execute and register a sale deed for the schedule land, but the defendant has been postponing with wrongful motive. The defendant promised before the elders that he would execute a sale deed shortly stating that the plaint schedule property and some other properties were under mortgage to a bank and that he would discharge that mortgage debt soon. On account of the assurance given by the defendant before elders, the plaintiff waited hoping that the defendant would not deceive him. In the month of Se