THE HON’BLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HON’BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL No.262 OF 2007 JUDGMENT: (Per Hon’ble Smt. Justice Tirumala Devi Eada)

This is an appeal filed by the appellant being aggrieved by the judgment and decree, dated 04.06.2007, passed in O.S.No.401 of 2005 by the learned III Additional Chief Judge, City Civil Court, Hyderabad (for short “the trial Court”).

2. The appellant herein is the defendant No.3, respondent No.1 is the plaintiff, respondent Nos.2 to 5 are the defendant Nos.1, 2, 4 and 5 before the trial Court and the parties herein are referred to as they were arrayed in the suit before the trial Court for the sake of convenience and clarity.

3. The case of the plaintiff before the trial Court is that the suit schedule property bearing municipal Nos.10-2-317/5/1, 5/2 and 5/3, situated at Vijayanagar Colony, Hyderabad admeasuring 1000 Sq.yards was leased out by H.E.H., The Nizam, The Government to Major Shankar Lal, by virtue of registered deed of Lease, dated 16.02.1953 and that the Government of Andhra Pradesh has issued orders vide G.O.Ms.No.46 dated 02.07.2005, converting leasehold rights to free hold on payment of amounts to the Andhra Pradesh Housing Board. It is further averred that the defendant Nos.1 to 3 who are the sons of late Major Shankar Lal have partitioned the said property among themselves which was reduced into writing under a Memorandum of Family Arrangement Deed dated 10.02.1996 and that the defendant Nos.1 to 3 agreed to sell the mulgies in the suit schedule property which were allotted to defendant Nos.1 to 3 bearing No.10-2-317/5/1, 10-2-317/5/2 & 10-2-317/5/1 and in addition to that the 3^rd defendant had agreed to sell the portion behind the Mulgi bearing No.10-2-317/5/1 i.e. open land (totally admeasuring 357.88 Sq.yards allotted to 3^rd defendant), situated at Vijayanagar Colony, Hyderabad and thus, defendant Nos.1 to 3 have entered into agreement of sale for a total sale consideration of Rs.32,40,000/- @ Rs.3,60,000/- per mulgi and the balance amount towards open land behind the mulgies, as such, the agreement of sale was executed on 14.12.2004. Pursuant to the agreement of sale, the plaintiff has paid the advance sale consideration of Rs.12,10,000/- and that the receipts were executed by them. He further submitted that as per the terms of the agreement of sale they had to deliver vacant possession of the property by evicting the tenants in the mulgies but the defendants have been evading the plaintiff with a view to gain illegally. It is his case that he is ready with the balance sale consideration and has been always ready and willing to perform his part of contract. He further averred that defendant Nos.1 to 3 are liable to pay amount to the Government as per the G.O.Ms.No.46 but in the event if they failed to pay the amount the plaintiff seeks the leave of the Court to permit him to pay the amount to the Housing Board to get the suit schedule property as free fold. Since the defendants have not come forward to execute the registered sale deed at their request which was finally made on 26.10.2005 he got issued a legal notice dated 05.11.2005 but in vain. Hence, the suit.

4. The defendant Nos.1 and 2 have filed their written statement admitting the execution of agreement of sale but stated that the suit is premature and that the plaintiff was not ready and willing for getting the sale deed registered in his favour. They further submitted that they were ready and willing to execute the sale deed in favour of the plaintiff and they further submitted that there is a novation of contract and under the novated contract the plaintiff had agreed to pay a sum of Rs.10 Lakhs more to defendant No.3. They denied to have agreed to get the tenants evicted from the premises. They stated that they have agreed to sell the property in as is whereis condition. They further denied that the father of the plaintiff has approached them on 26.10.2005 for