THE HON’BLE SMT. JUSTICE RENUKA YARA APPEAL SUIT No.366 OF 2019

JUDGMENT:

Heard Sri V.Hari Haran, learned counsel for the appellants and Sri B.Narasimhulu, learned counsel for the respondent. Perused the record.

2. This is an appeal preferred by appellant/plaintiff aggrieved by the judgment and decree dated 03.06.2019 passed in O.S.No.30 of 2018 by the learned VI Additional District Judge, Siddipet, wherein the Suit filed by the plaintiff seeking specific performance of agreement of sale dated 13.10.2017, was dismissed.

3. The brief facts of the case are that the appellant/plaintiff filed the suit for specific performance of agreement of sale dated 13.10.2017 and for perpetual injunction against the respondent with respect to suit schedule property consisting of land admeasuring Acs.5.12 ½ guntas out of total extent of dry agricultural land admeasuring Acs.17.37 ½ guntas in Sy.Nos.1750 and 1751/2 situated at Pothireddipeta Village of Dubbak Mandal, Medak District. The respondent/defendant and three others have jointly purchased the land to an extent of Acs.5.12½ guntas out of total extent of Acs.17.37½ guntas in Sy.Nos.1750 and 1751/2 situated at Pothireddipeta Village of Dubbaka Mandal, Medak District under a registered sale deed document No.271/2008, dated 26.03.2008. The respondent offered to sell the suit schedule property for a sale consideration of Rs.20,00,000/- and executed an agreement of sale dated 13.10.2017. The appellant paid total consideration of Rs.20,00,000/- to the respondent and the same is acknowledged. Further, the respondent delivered physical vacant possession of the suit schedule property to the appellant and delivered registered sale deed No.271 of 2008 dated 26.03.2008. The respondent also issued four undated cheques bearing Nos.000029, 000030, 000031 and 000032 for Rs.4,00,000/-, Rs.4,00,000/-, Rs.4,00,000/- and Rs.3,00,000/- respectively and also executed four undated promissory notes for the aforesaid amounts in favour of the appellant towards security enabling the appellant to hold the same till the date of registration of sale deed. The respondent has to execute the registered sale deed in favour of the appellant within 60 days, however, postponed the same. In the circumstances, the appellant got issued legal notice dated 19.05.2018 demanding the respondent to execute registered sale deed but there was no reply from the respondent. The appellant learnt that the respondent is trying to alienate the suit schedule property to third parties by suppressing agreement of sale. Hence, the appellant filed the suit for specific performance.

4. The respondent remained ex parte before the trial Court.

5. The appellant got examined himself as P.W.1 and got marked Exs.A1 to A7.

6. The trial Court upon examining the oral and documentary evidence dismissed the suit on the ground that Ex.A1-agreement of sale is not proven, as the witness to the agreement of sale is not examined. It is held that mere marking of the document is not sufficient but the contents are to be proven. According to the trial Court since the entire sale consideration is paid and possession is delivered, the document becomes a compulsorily attestable document and to prove such a document, witness has to be examined. Therefore, the trial Court entertained doubt about legality and enforceability of the agreement of sale dated 13.10.2017. It is held that the remaining documents i.e. Ex.A2 original registered sale deed document No.271/2008, dated 24.03.2008, Ex.A3-original encumbrance certificate, dated 13.06.2018, Ex.A4-original undated cheques, Ex.A5-original undated promissory notes, Ex.A6-office copy of legal notice dated

19.05.2018 and Ex.A7-original postal receipt are of no help to prove the case of the appellant. Further, it is held that until possession is not proven, permanent injunction cannot be granted. It is held that non-examination of witness to Ex.A1 warrants an adverse inference under Section 114 of the Indian Evidence Act. As such d