NOTI CHINA SUBBA REDDY Vs. PULAVARTHI RAMA RAO

JUDGEMENT

(1.) The unsuccessful 1st defendant in O.S. No. 51 of 1997 on the file of the learned Subordinate Judge, Kavali is the appellant. The suit for specific performance is decreed as against the defendants 1 and 2, the father and son, but however, the 1st defendant alone had preferred the appeal and the 2nd defendant was impleaded as R2 in the appeal. However, no relief was granted as against the 3rd defendant. The 3rd defendant also is shown as the 3rd respondent in the present appeal. The suit O.S. No. 51 of 1997 on the file of the learned Subordinate Judge, Kavali was instituted averring as follows in the plaint : "The 1st defendant borrowed a sum of Rs. 12,000/- from the plaintiff on 4-3-1976 and executed a promissory note in his favour promising to repay the same together with interest at 12% p.a. He however made no payments for the debt. So the plaintiff caused the issue of a lawyer notice on 30-8-1977 demanding payment. The notice was served on 1st defendant on 3-9-1977. There was no reply. Subsequently he approached the plaintiff offering to sell his land as he was not in a position to discharge the debts. Accordingly the bargain was negotiated and the price was agreed at Rs. 10,000/- per acre and the 1st defendant agreed to sell the schedule mentioned land of Ac.1-90 cents to the plaintiff and executed an agreement of sale dated 25-9-1977. Towards the sale price on the aforesaid promissory note debt amounting to Rs. 14,244/- was adjusted and a cash of Rs. 2,756/- was paid making a total of Rs. 17,000/-. It was agreed that the land should be got measured and for the correct extent ascertained the price should be worked out and adjustment made and the balance should be paid before the Registration of the sale deed. Time of two months had been fixed from the date of the agreement for performance. As provided in the agreement 1st defendant undertook to have the sale deed executed by himself and his son Malakonda Reddi jointly. The 1st defendant did not co-operate in getting the land measured and did not take any steps for performance. The plaintiff therefore caused the issue of lawyer notice dated 11-11-1977 calling upon the defendant for specific performance. The notice was served on the 1st defendant on 17-11-77. A belated reply dated 7-12-77 was sent by the 1st defendant through his lawyer with all false allegations, denying the execution of the agreement of sale in favour of the plaintiff and adjustment of pronote debt towards the sale price and the receipt of cash of Rs. 2,756/- from the plaintiff. The agreement of sale in favour of the plaintiff is true and it is validly executed and attested and supported by consideration. The plaintiff has been ready and willing to perform his part of the contract and pay the balance of the sale price that may be ascertained after measuring the land. The stand taken by the 1st defendant in his reply notice denying the agreement altogether and setting upon an earlier agreement in favour of his elder brother (third defendant) has made it necessary for the plaintiff to seek specific performance of an agreement of sale. In view of the alleged alienations in the reply notice of the 1st defendant, the third defendant is also added as a necessary and proper party to the suit. In the lawyer notice dated 11-11-1977 issued by this plaintiff it was mentioned by a slip that the pronote was cancelled and given to the 1st defendant but the pronote has been with the plaintiff as the said debt is part of the consideration for the sale agreement. As the pronote was not given to the lawyer at that time, the mistake has occurred in the notice that the pronote had been given to the 1st defendant. The plaintiff is ready to pay the balance of the sale price and bear the expenses for registration for the sale deed. Therefore, the defendants may be directed to execute registered sale deed in respect of the plaint schedule property in favour of the plaintiff and in default thereof, the sale deed may be executed by the Court."

(2.) The appellant in the appeal as the 1st defendant in the suit filed a written statement with the following allegations : "This defendant had borrowed from the plaintiffs father and became indebted to him in a sum of Rs. 6,000/-. The plaintiffs father took a double bond in favour of the plaintiff for Rs. 12,000/-. This defendant repaid the amount now and then which came to about Rs. 5,350/-. The plaintiffs father is a seasoned litigant and has taken several thumb impression papers from this defendant. This defendant is also indebted to others including his brother Noti Subba Reddy. For discharging the debts this defendant sold Ac.0-63 cents in Items I and II and Ac.0-75 cents in Item III of the plaint schedule property and Ac.0-70 cents in S.No. 763 and Ac.0-50 cents in S.No. 735/1 of Annavaram village in favour of his brother. Notu Subba Reddy on a stamped agreement of sale dated 20-8-77 for Rs. 16,500/- and delivered possession of the same on the date of the agreement. After selling the property aforesaid, this defendant went to the plaintiffs father for paying the balance under the promissory note and return of the thumb impression papers. The plaintiffs father was evading. On or about the last week of August, 1977, this defendant approached the plaintiffs father through Iska Venaktarama Reddy and Tippareddi Venkata Krishna Reddy of Zaladanki. The date given as 4-3-76 in para 5 of the reply notice is a mistake as the same represents the date of the promissory note and inadvertent type error. At that time namely last week of August 1977 the plaintiffs father admitted the payment of Rs. 5,350/- by this defendant to him but showed several other unfilled thumb impressions on white papers containing the defendants thumb impressions and stated that unless this defendant pays Rs. 12,000/- with interest at Rs. 5/- per hundred per mensum; he would not receive this amount or return the blank thumb impression papers. The said mediators and this defendant informed Sri K. Yanadi Reddy of Kavali and he sent for the plaintiffs father. The plaintiffs father came during first week of November, 1977 and in his presence the said Yanadi Reddy and Karatham Ramachandra Reddy of Bitragunta, the plaintiffs father admitted the payments made by this defendant and is having thumb impression papers also and stated he would consult the plaintiff herein and informed them about the same in about a week. Subsequently the plaintiffs father did not turn up and sent a notice in the name of the plaintiff on 11-11-77. This defendant has sent a reply thereto on 7-12-77. This defendant submits that this agreement of sale is not true and this defendant never executed the same. In case it is made out that the agreement of sale contains the thumb impressions of this defendant the same must have been concocted as blank impression papers. No cash was paid by the plaintiff to this defendant nor any such agreement of sale. This defendant questions the capacity of the plaintiff and his father to lend a sum of Rs. 12,000/- or purchase properties for Rs. 17,000/-. The value of the plaint schedule property is exaggerated by the plaintiff. This defendant denies the issue of any notice on 30-8-77. This defendant to his misfortune has become a chronic addict to drinking which eventually landed himself and his family in debts. It is not true to say that this defendant was in possession and enjoyment of plaint schedule land on the date of the alleged agreement of sale in favour of the plaintiff. It is also false to say that this defendant undertook to get the sale deed executed by his son second defendant also. This defendant never did so nor is the second defendant bound by the agreement of sale. The plaintiff cannot file the suit against the second defendant who admittedly is not a party to the alleged agreement. The plaintiff and his father appeared to have brought about the agreement of sale with a view to forestall a defence on the part of this defendant under Act VII of 1977. The suit is vexatious and fraudulent attempt on the part of the plaintiff and his father to unjustly enrich themselves at the expenses of this defendant. The plaintiff is not entitled to question the agreement of sale in favour of the third defendant, second and third defendants are not proper or necessary parties to the suit."

(3.) An adoption Memo was filed by the 2nd and 3rd defendants and on the strength of the above pleadings, initially, the following issues were settled : 1. Whether the entire plaint schedule property belongs to the 1st defendant and the agreement of sale dated 25-9-77 in respect thereof is true, valid and supported by consideration and binding on the defendants? 2. Whether the agreement of sale dated 20-8-77 by 1st defendant in favour of third defendant is true, valid and binding on the plaintiff? 3. Whether the plaintiff is entitled for specific performance and if so, against which of the defendants? 4. To what relief, if any, the plaintiff is entitled?