AMMISETTI CHANDRAM ALIAS RAMACHANDRAN Vs. CHODASANI SURYANARAYANA

JUDGEMENT

(1.) This appeal is filed by defendants 1 to 3 in O.S. No. 466 of 1975 on the file of the Principal District Munsif, Kovvur against the judgment and the decree dated 30-10-1989 in A.S. Nos. 19 and 24 of 1982 on the file of the Subordinate Judge, Kovvur modifying the judgment and decree dated 28-12-1981 made by the Principal District Munsif, Kovvur in the above suit.

(2.) Necessary facts for disposal of this appeal are as follows : The 1st appellant-1st defendant and Veera Raju (P.W. 9) are own brothers. They got divided and possessed separate properties. The 1st defendant (the defendants hereinafter will be referred to as D-1, D-2 and D-3) is the owner of the plaint B-schedule property, P.W. 9 is the owner of plaint A-schedule property. According to the respondent-plaintiff, on 20-4-1974 D-1 and P.W. 9 agreed to sell their respective properties to the plaintiff for a total consideration of Rs. 10,000/-, on that day D-1 received Rs. 3,000/- as part sale consideration and P.W. 9 received a sum of Rs. 2,000/- as part sale consideration and both of them jointly executed sale agreement, Ex. A-1 in favour of the plaintiff. He also pleaded that subsequently D-1 and P.W. 9 received separately the balance of sale consideration payable to them and made part payment endorsements. The possession of the suit property was not delivered to the plaintiff on the date of Ex. A-1 agreement. It is the further case of the plaintiff that after part payments were made towards Ex. A-1, at the time of last payment endorsement D-1 and P.W. 9 delivered possession of the suit property to him. He also pleaded that P.W. 9 executed a registered sale deed conveying plaint-A schedule property to the plaintiff and in spite of several demands, D-1 refused to execute a registered sale deed in favour of the plaintiff in pursuance of Ex. A-1 sale agreement. D-2 and D-3 in the suit are not the parties to the sale agreement Ex. A-1. D-1 filed written statement categorically denying execution of Ex. A-1 agreement as well as receipt of sale consideration from the plaintiff. According to the defendants, D-1 sold plaint B-schedule property to D-2 and D-3 under separate sale deeds. The plaintiff wanted a decree for specific performance against all the defendants. It appears that his interim application for temporary injunction in his favour was dismissed by the trial Court. Subsequently he filed an amendment petition with a plea that subsequent to the dismissal of interim injunction application the defendants have trespassed into the suit property. He sought the additional relief for recovery of possession from all the defendants. On the pleadings of both the parties the trial Court settled appropriate issues for trial. Both the parties adduced oral and documentary evidence in support of their respective pleas. The trial Court opined that D-1 executed sale agreement, Ex. A-1. It disbelieved one part payment endorsement said to have been made by D-1. It decreed the suit against D-1 alone. In the judgment the trial Court did not state that the suit is dismissed against other defendants viz., D-2 and D-3. However, the decree drafted by the trial Court in pursuance of the judgment indicated that the trial Court dismissed the suit against D-2 and D-3. Aggrieved by the judgment of the trial Court D-1 preferred one appeal before the lower appellate Court. Aggrieved by the dismissal of the suit against D-2 and D-3, the plaintiff preferred another appeal. Curiously the lower appellate Court delivered two separate judgments in the two appeals. The lower appellate Court ought to have delivered a common judgment in both the appeals clubbing both the appeals together inasmuch as both the appeals arise out of one and the same suit and judgment. This procedure adopted by the lower appellate Court is to be deprecated. The lower appellate Court dismissed the appeal preferred by D-1. It allowed the appeal filed by the plaintiff. Aggrieved by the two judgments of the lower appellate Court all the defendants jointly filed the present Second Appeal.

(3.) At the time of admission of this appeal the learned Admission Judge treated the following grounds formulated in the memo of appeal as substantial questions of law that arise for consideration in the present appeal.