MARELLA VEERABRAHMACHARYULU Vs. KONDURU VENKATA SUBBAMMA

JUDGEMENT

(1.) The subject matter of the appeals and the parties are the same in both. These appeals arise out of two connected suits, O. S. No. 409/1951: filed by the appellant for partition of certain lands and for delivery of his 1/3rd share and O. S. No. 137 of 1952 filed by the 2nd respondent for specific performance of an alleged agreement for reconveyance of the suit lands in his favour on 26/09/1926.

(2.) The facts material for the purpose of this enquiry may be briefly slated as follows : An extent of five acres of land, in which 1/3 share is now claimed by the appellant, originally belonged to the respondent No. 2 and his brothers and they sold it to one Nukalapati Ramireddi and another.Two months later, Ramireddi and the other purchaser sold it to three brothers, Seshayya, Sreenivasiah and Varadayya for Rs. 2,900.00. Varadayya is the 3rd defendant in O. S. No. 409 of 1931. On the same date, they executed an agreement Ex. A. 12 in favour of the 2nd respondent, whereunder the latter could continue in possession of the property on payment of rent.It was also recited in the agreement that they would convey their share in the property to the 2nd respondent for the price mentioned in the sale deed in the event of their deciding to sell it. Pursuant to this agreement, the 2nd respondent continued in possession of the property. Later on, he sub-based the property to a third party who is impleaded as the 5th defendant in O. S. No. 409 of 1951 and, in fact, at the time of the suits, it was the sub-1essee that was in actual possession of the properties. Under some arrangement, the shares of Seshayya and Sreeoivasiah were acquired by the respondent, while the third brother Varadayya mentioned above i.e. the 3rd defendant in O. S. No. 409 of 1951 continued to own the 1/3rd share, which is involved in these appeals. Varadayya agreed to sell his share to the appellant under Ex. B. 1 dated 17-8-1948 and two months later i.e., on 15-10-1948 the appellant obtained a sale deed in respect of his share under Ex. B-2.Thereupon, he issued a notice to the tenant to deliver possession of the properties. The latter replied that he was not prepared to surrender possession as he was a tenant under the respondent. As a counterblast, the 2nd respondent demanded of the appellants vendor Varadayya by notice to execute a sale deed in his favour in fulfilment of the terms of Ex. A-12. As he denied the said agreement, the 2nd respondent filed O. S. No. 137 of 1952 on the 26th of April 1952, while the appellant brought O. S. No. 409 of 1951 for the reliefs mentioned above.

(3.) The main issues in both the suits were whether Ex. A-12 was genuine and whether the 2nd respondent was entitled to specific performance of the agreement. The trial Court decreed O. S. No. 137 of 1952 and dismissed O. S. No. 409 of 195L finding both the issues in favour of the 2nd respondent. On appeal, the Subordinate Judge affirmed the judgment and decree of the trial court. Both the courts proceeded on the assumption that Ex. A-1,2 contained an agreement to Sell the property and that the 2nd respondent was entitled to specific performance. Further, the Subordinate Judge came to the conclusion that, though nearly 26 years have elapsed since the execution of Ex. A-12, the suit was not barred under Article 113 of the Limitation Act since the 2nd respondent had notice that performance was refused only in 1949 when the predecessor-in-interest of the appellant declined to give effect to Ex. A12.