RUTTALA SIMHACHALAM Vs. CHUNDRU BHIMESWARA JAGANNADHAM

JUDGEMENT

(1.) Aggrieved by the judgment and decree dated 22-4-1988 in O.S. No.28 of 1987 on the file of Subordinate Judge, Pithapuram, Defendant-1 (Ruttala Simhachalam) has filed this appeal.

(2.) Respondents 1 and 2 (Chundru Bhimeswara Jagannadham and Sabbella Savitri) are plaintiffs in O.S. No.28/87 on the file of Subordinate Judge, Pithapuram. The appellant herein and Respondent-3 (Somireddi Ramulu) are Defendant-1 and Defendant-2 in the said suit. The parties hereinafter be referred to as they are arrayed in the suit.

(3.) The plaintiffs filed the suit for specific performance of an agreement of sale dated 10-11-1979 executed by Defendant-1 in favour of 1st plaintiff in respect of Ac. 1-62 cents in Sy.No.281/3 situated in Pithapuram Village, East Godavari District or alternatively a decree for refund of money with interest at 12 per cent from the date of suit till the date of payment against Defendant-1 and against the plaint schedule property in the hands of Defendant-2 and to pass such other relief as the Court deems it fit in the circumstances of the case. It is the case of the plaintiffs that Defendant-1 is the owner of the land bearing S.No.281/3 admeasuring Ac. 1.62 cents adjoining Kakinada - Pithapuram road (hereinafter referred to as the land) and it is offered by him for sale to 1st plaintiff who agreed to purchase it for Rs.27,540/-. The first plaintiff paid Rs. 10,000/- towards sale consideration to Defendant-1 who executed an agreement on the said date agreeing to execute a registered sale deed within three months in favour of the 1st plaintiff or his nominee. The plaintiffs purchased the land to start a factory jointly. As Defendant-1 failed to execute the registered sale deed in pursuance of the agreement of sale dated 10-11-1979, the 1st plaintiff got issued a registered notice on 2.6.1982 demanding compliance of the terms of the agreement. Defendant-1 gave a reply disputing the agreement of sale and setting up a sale in favour of Defendant-2 and delivery of possession of the land also to Defendant-2. Therefore, the plaintiffs filed the suit for specific performance of agreement of sale dated 10-11-1979. Defendant-1 filed written statement disputing the agreement of sale dated 10-11-1979 in favour of 1st plaintiff. She took the plea that she borrowed Rs. 10,000/- from the 1st plaintiff promising to repay the same at 12 per cent interest and that the 1st plaintiff obtained her thumb impression on some papers and made use of them to concoct the agreement of sale. She also took the plea that she sold Ac.2.62 cents of land in Sy.No.283/3 under an agreement of sale dated 1.3.1979 to Defendant-2 at the rate of Rs.12.500/- per acre and also received an advance of Rs.20,000/- towards sale consideration on the date of the agreement and subsequently she received Rs.5,000/- on 7.5.1980 and made endorsement to that effect on the said agreement of sale. Defendant-2 filed written statement contending that Defendant-1 agreed to sell Ac.2-62 cents in Sy.No.281/3 under an agreement of sale dated 2.1.1979 and received an amount of Rs.20,000/- on the date of agreement. He also contended that he took possession of the land on the date of agreement and paid Rs.7,850/- towards balance of sale consideration and obtained endorsement of Defendant-1 on the agreement of sale dated 1.3.1979. Basing on the above pleadings, the lower Court settled the following issues and additional issues for trial: