MANGATI VENKATARAMA REDDY Vs. A VINDASWAMY

JUDGEMENT

(1.) THE legal representatives of the defendant, one Mangati Venkatrama Reddy, are the appellants in the present second appeal. The legal heirs of late Suseelamma had instituted O. S. No. 368 of 1980 on the file of I Additional District Munsif, Tirupati for the relief of specific performance of the contract of agreement of sale and also in alternative for the relief of refund of Rs. 2,400/- at least by way of damages for breach of contract to execute the sale deed with interest thereon at 12% per annum from the date of the suit till the date of realization and for costs. Sri O. Manohar Reddy, learned counsel representing the appellants had made the following submissions: The learned counsel in all fairness submitted that though the defendant had taken a stand denying the execution of the agreement of sale, in view of the concurrent findings recorded by both the Courts below, the same cannot be assailed in the present second appeal. The learned counsel also had taken me through the findings recorded by both the Courts below and also the reasoning adopted why the suit was instituted after a period of about 13 years after the execution of the agreement of sale. However, the learned counsel pointed out that in view of the fact that alternative relief was prayed for definitely the relief of specific performance is not available to the respondents for the reason that the land had been acquired by the Railways which is clearly evident by Ex. B-4 proceedings which was marked by way of additional evidence at appellate stage. The learned counsel also further submitted that in view of the subsequent event, the contract itself is frustrated because of the impossibility in performing the said contract. The learned counsel had drawn my attention to Section 56 of the Indian Contract. Act. Further the learned counsel submitted that even otherwise in view of the subsequent event, the performance of the contract became impossible even in view of Section 55 of the Transfer of Property Act, 1882 since a seller is bound to deliver possession of the property at the time of the execution of the registered sale deed in pursuance of the agreement of sale and this cannot be done because of the reason that the Railways had acquired the said property and hence it is not in the hands of the appellants to effect delivery even in the event of a direction being given to execute a regular registered sale deed in pursuance of the agreement of sale, the subject-matter of the present suit. The learned counsel had pointed out that this is the only question of law which arises for consideration in the second appeal and had taken me through the substantial questions of law framed which had been specified in the grounds of appeal in general and ground No. 2 in particular.

(2.) PER contra, Sri Mukunda Rao, the learned counsel representing the respondents had contended that even from E. B-4 it is not clear that the acquisition proceedings by Railways were completed and in fact, the property is available and in view of the concurrent findings recorded by both the Courts below, the appellants cannot take advantage of Ex. B-4 and try to escape from their liability of executing a regular registered sale deed which the respondents are ready and willing to take. The learned counsel also had explained that the recitals in the agreement of sale clearly go to show that there is a condition that the sale deed will be executed after conversion of the area in question into plots and an admission was made that in the year 1980 only this area was converted into plots and consequently, in view of the recital, a notice was given and since the defendant was not willing to perform his part of the contract, a suit was instituted and hence perfectly, the suit is within the period of limitation. The learned counsel also had taken me through the findings recorded in A. S. No. 80 of 1987 on the file of Additional District Judge, Tirupati and had submitted that the plaintiffs are ready and willing to take the property as it is, as it stands on today.

(3.) HEARD both the counsel.