BOLISETTI VENKATARATHANAMMA DIED Vs. NADAKUDUTI VENKATESWARA RAO

JUDGEMENT

(1.) These are two L.P.As filed against the common judgment of the learned single Judge in appeals A.S.No. 538 of 1992 and Tr.A.S.No. 416 of 1993. The appeals were filed against the common order passed in O.S.No. 42 of 1987 and O.S.No. 46 of 1987 decided by the Subordinate Judge, Tenali. A.S.No. 538/92 arose against the judgment in O.S.No. 42/87 whereas the judgment in O.S.No. 46/87 gave rise to Tr.A.S. No.416/93. We will be referring to the parties as 'plaintiff and 'defendants' as they appear in the suit for specific performance.

(2.) The plaintiff filed a suit for specific performance of an agreement and wanted the defendants to execute the sale deed whereas the defendants claimed that the plaintiff was their tenant and they filed a suit for recovery of possession and determination of tenancy. The suit for specific performance was decreed and the suit filed by the defendants for recovery of possession was dismissed. Therefore the defendants filed both the appeals before the learned Single Judge. The learned Single Judge upheld the judgment of the trial court and therefore these two Letters Patent Appeals have been filed by the defendants.

(3.) The brief facts giving rise to filing of the suit for specific performance are that, the tenancy by the plaintiff was accepted but during the tenancy it was alleged that there had been an agreement to sell between the plaintiff and the defendants, therefore the plaintiff filed the suit for specific performance of agreement of sale dated 21-1-81 (Ex.A-1). According to the plaintiff, by this agreement the defendants had agreed to sell the suit premises for a consideration of Rs. 26,000/- which was to be paid within one month. Rs. 20,000/- had been paid at the time of the agreement and the balance of Rs. 6,000/- was agreed to be paid within one month and in case of default to pay the balance within one month an interest at the rate of 18% per annum was agreed to be paid by the plaintiff. The plaintiff was already in possession as a tenant and continued to remain in possession. The plaintiff claimed that he had been ready and willing to perform his part of the contract but the defendants were avoiding, therefore a notice was given in reply to which the defendants denied the execution of the agreement. The following issues were framed by the trial court. (1) Whether the plaintiffs are entitled for recovery of possession of the schedule property from the defendant? (2) Whether the plaintiff is entitled for the amount towards rent? (3) To what relief? The question raised before us is, whether the trial court and the learned Single Judge were right in allowing the suit and decreeing the suit for specific performance in view of the fact that the agreement was not proved. It was further contended by the learned counsel appearing for the appellants- defendants that, even if it is assumed that the agreement was proved, it had not been proved that the plaintiff was ready and willing to perform his part of the contract. He attacked the agreement on various grounds and he also submitted that there was sufficient evidence to show that the plaintiff was not continuously willing and ready to perform his part of the contract. On the other hand, the learned counsel appearing for the respondent-plaintiff submits that the agreement has been proved and willingness and readiness of the plaintiff has also been proved.