THE HONOURABLE SMT. JUSTICE K. SUJANA In/and

COMMON JUDGMENT:

Challenging the judgment and decree dated 17.09.2003 passed in O.S.No.21 of 1996 by the learned II Additional District Judge, Karimnagar, the present Appeal Suit is filed.

2. The brief facts of the case are that O.S.No.21 of 1996 is filed by the plaintiff seeking a decree for specific performance of an agreement of sale dated 03.07.1993, along with the recovery of possession of the plaint schedule house. As per the plaintiff, defendant No.1 entered into a sale agreement with him for a consideration of Rs.2,10,000/-, out of which Rs.1,10,000/- was paid as part consideration. The remaining Rs.1,00,000/- was to be paid by 03.04.1994, upon which the sale deed was to be executed. The plaintiff alleges that despite being ready and willing to perform their obligations under the contract and offering the balance amount, defendant No.1 failed to execute the sale deed. Instead, defendant No.1 proceeded to sell the property to defendant No.2. Defendant No.2, however, denies the claim of the plaintiff and asserts that they had an earlier agreement of sale with defendant No.1 dated 27.03.1993, pursuant to which possession of the property was delivered.

3. Basing on the above pleadings, the trial Court framed six issues and on behalf of the plaintiffs i.e., PWs.1 to 3 were examined and Ex.A1 to A8 are marked. DWs.1 to 3 are examined and Exs.B1 to B7 were marked on behalf of the defendants.

4. After examining the evidence, the trial Court, vide order dated 17.09.2003, allowed the suit observing that the agreement of sale dated 03.07.1993, was valid, true, and binding on the parties. Furthermore, the plaintiff was found to have been consistently ready and willing to fulfill his contractual obligations. Aggrieved by the said judgment and decree, the appellant/defendant No.2 filed the present appeal suit.

5. Heard Sri P. Prabhakar, learned counsel appearing on behalf of the appellant as well as Sri V. Ravi Kiran Rao, learned Senior Counsel representing Sri V. Rohit, learned counsel appearing on behalf of the respondents.

6. Learned counsel for the appellant submitted that the impugned judgment and decree of the trial Court is contrary to law and the facts of the case. He contended that the trial Court erred in not considering the fact that the appellant had been in possession of the suit schedule property. Furthermore, the trial Court ought to have noted that respondent No.2 had executed a registered sale deed in favor of the appellant on 29.12.1993, and respondent No.1 was not competent to execute the agreement dated 03.07.1993 in favor of respondent No.1. He argued that the trial Court failed to observe that respondent No.1 was incapacitated from executing a registered sale deed in favor of respondent No.1, as respondent No.1 had already executed a registered sale deed in favor of the appellant. He further contended that the suit was barred by limitation and that the trial Court erred in marking Ex.A1, an unregistered agreement of sale, while refusing to mark the agreement of sale dated 27.03.1993, executed by respondent No.1 in favor of the appellant.

7. Learned counsel for the appellant further submitted that the trial Court failed to appreciate that respondent No.2 had secured the execution of a registered sale deed in favor of the appellant, and that the plaint schedule property did not include a description of the RCC building and that respondent No.3 had become an inheritor and left Karimnagar approximately one and a half years ago, and was not a tenant in the suit schedule house. It was also contended that respondent No.1 filed Ex.A8, which consists of income tax returns, but the part sale consideration allegedly paid by respondent No.1 was not reflected in those income tax returns. The counsel contended that the trial Court wrongly marked Ex.A1 and based its findings on the same while refusing to consider the agreement of sale dated 27.03.1993, executed by respondent No.1 in fav