WAHEED BAIG Vs. BANGI LAKSHMAMMA

JUDGEMENT

(1.) Challenge in this appeal is by the defendant No. 1 who was the respondent No. 1 in the Second Appeal filed by the respondents 1, 2 and 3. The second appeal filed in terms of Section 100 of the Code of Civil Procedure, 1973 ( in short the Code) was allowed by the High Court by the impugned judg ment.

(2.) The background facts in a nutshell are as follows : OS No. 953 of 1984 on the file of the Second Additional Judge, City Civil Court, Hyderabad was filed by one B. Venkatachalam, the husband of the respondent No. 1 and father of respondents 2 and 3. During pendency of the suit, the said Venkatachalam died and his legal representatives were brought on record. The suit was filed by the plaintiffs for the specific performance of agreements of sale (Exs.A-1 and A-4) by passing a decree in favour of the plaintiffs, to convey the plaint schedule property in favour of the plaintiffs by executing a proper sale deed, and if the specific performance of the suit contract is not possible, to repay an amount of Rs. 22,475.30 received by the defendant towards the sale consideration with in terest thereon at 12% per annum from the date of suit till the date of realization, and to deliver vacant possession of the plaint schedule property to the plaintiffs. According to plaintiff, the 2nd defendant allotted the plaint schedule house bear ing No. SRT 374 situated in the Industrial Housing Colony, Sanathnagar to the 1st defendant in 1962 under the Subsidised Industrial Housing Scheme. The 1st defen dant, who was working as helper in the Engineering Industrial Corporation, was in occupation of the suit house as tenant since 1962. In 1968, the 1st defendant leased out the major portion of the house to the plaintiff, and the 1st defendant was residing in the kitchen room. The 1st defendant offered to sell the suit house, and the plaintiff agreed to purchase the same for a consideration of Rs. 13,000/-, and accordingly, they entered into an agreement of sale dated 8.2.1976 (Ex. A-1) and pursuant to the said agreement of sale, an amount of Rs. 3,000/- was paid by the plaintiff to the defendant. As per Ex. A-1, the time fixed for concluding the said contract was 6 years; and the balance was agreed to be paid before the expiration of the time fixed for concluding the contract. As the said agreement was not concluded, the same was ratified by another agreement of sale dated 16.7.1976 (Ex. A-4). By that date, the 1st defendant had already received an amount of Rs. 6,200/- towards earnest money, and again five years period was fixed for completion of the concluded contract. As per the terms of Ex.A-4, the original plaintiff has to pay the remaining instalments of the hire-purchase amount due to the Commissioner of Labour apart from the agreed sale consideration of Rs. 13,000/- in respect of the suit schedule house. The plaintiff, being a tenant even prior to the contract of sale, is in possession of the suit house as the owner under the part performance of the said contract of sale. It is the case of the plaintiff that the 1st defendant only paid an amount of Rs. 1,696.55 in respect of the hire purchase deposit on 25.2.1972. Except the said amount, the 1st defendant has not paid any amount towards the installments. The plaintiff not only paid back the said amount Rs. 1,692.55 to the 1st defendant on the next day, but also paid the further installments amount of Rs. 9,475.30 on 7.6.1982 towards the full discharge of the hire purchase amount in respect of the suit schedule house on behalf of the 1st defendant in discharge of all installments. Though the 1st defendant had to vacate the kitchen portion, which was under his occupation, and deliver vacant possession to the plaintiff as per the terms of the agreement of sale (Ex. A-4, he has not done so. As per the agreement of sale (Ex.A-4, the suit house was allotted to the 1st de fendant in 1962 and since then, the 1st defendant was in possession of the suit house, and therefore, the 1st defendant inducted the plaintiff into possession of the suit house since last 10 years as on the date of Ex.A-4, i.e. the tenant is in possession of the suit house since 1966. Out of total sale consideration of Rs. 13,000/-, an amount of Rs.7,500/- was already paid and the remaining installments amount of Rs.5,500/-was paid by the plaintiff to the Commissioner of Labour. It is further stated that the portion in occupation of the 1st defendant was also to be vacated and handed over to the plaintiff and the plaintiff has to pay the expenses of registration of the suit sched ule property and the 1st defendant was to assist the plaintiff in transferring the suit schedule property. The future water charge shall be born by the plaintiff only. Thus, the plaintiff stated that as per the agreement, he has discharged his part of his con tract and paid the entire instalments amount and also discharged loan amount taken by the 1st defendant vide promissory note dated 7.4.1978. Though the plaintiff per formed his part of the obligation and he was ready and willing to get the sale deed registered at his expense, the 1st defendant was not willing to perform his part of the contract. It is also stated by the plaintiff that the entire instalments amount has been paid and the consideration payable to the 1st defendant amounting to Rs. 13,000/-was also paid in addition to the instalments amount. He filed an amended plaint stating that he became the owner by part performance, and therefore, the 1st defen dant is liable to pay rents to the plaintiff and the rent is calculated at Rs.92/- per month and the rental dues are calculated at Rs. 5,520/-. As regards the 2nd defen dant, it is stated that the 2nd defendant is fully aware about the agreement of sale entered into by the 1st defendant and the plaintiff, and the 2nd defendant received the entire installment amounts from the plaintiff without any protest, and the plain tiff alone was to pay the electricity and water charges, which he received from time to time without any protest, and after the death of the original plaintiff, his wife, son and daughter, who were brought on record as plaintiffs 2 to 4, are residing in the suit schedule property. The 1st defendant filed a written statement disputing the contract of sale between the 1st defendant and the plaintiff. According to him the 1st defendant is only a lessee and he has no right to alienate the suit schedule house by agreement of sale, and the right vested with the 2nd defendant as per the terms of the allotment until the entire amount is paid under the lease-cum-sale agreement (Ex.B-2). It is further stated that the suit agreement is not a contract meant to be acted upon by the parties, but it is time by the way of a collateral security in respect of the amounts lent from time to time by the plaintiff to the 1st defendant, and therefore, the suit agreement executed is not an agreement of sale, but was executed for the purpose of a collateral security. It is admitted that the plaintiff paid an amount of Rs. 7,500/- to the 1st defendant by cash on different occasions, but the 1st defendant is not aware of the payments made by the plaintiff on behalf of the 1st defendant to the Commissioner of Labour. The 1st defendant is also not aware about the alleged claim of payment of final installment amount by the plaintiff to the Commissioner of Labour. It is stated that the total amount paid by the plaintiff to the 1st defendant and the Commissioner of Labour was only Rs.13,975/-. The 1st defendant stated that the plaintiff is a lessee of the 1st defendant on a monthly rent of Rs. 150/- which was enhanced to Rs. 200/-subsequently, and again enhanced to Rs. 350/- and, therefore, the rental amount is set off against all the amounts paid by the plaintiff. The 1st defendant further stated that the agreement dated 16.7.1976 has no legal basis, and the suit filed by the plain tiff is not maintainable and the 1st defendant has not tried to forcibly evict the plain tiff with the help of anti-social elements as pleaded. After the written statement was filed, the Commissioner of Labour i.e. respon dent No. 4 in this appeal was impleaded. The following issues were framed :

(3.) Learned counsel for the appellant submitted that the directions as given by the High Court could not have been given in a Second Appeal.