TIRUMALASETTY SANTHAMMA Vs. YENUGANTI VENKAIAH

JUDGEMENT

(1.) Unsuccessful legal representatives of the defendant in both the Courts below are the appellants herein. The plaintiff/respondent herein filed the suit for specific performance of Ex. A-1 contract for sale dated 12.07.1983 said to have been executed by the defendant in his favour for the plaint schedule site of Ac. 0-10 cents in S. No. 14 of Muppavaram village, Prakasam District, after allegedly receiving total consideration of Rs. 5,000/- thereunder from him at the rate of Rs. 500/- per cent. The defendant resisted the plaintiff's claim on the ground that Ex. A-1 is a rank forgery and that the suit site fell to the share of the defendant's son Raghavaiah in family partition which took place in the year 1977 and that the plaintiff is not entitled for relief of specific performance of Ex. A-1 agreement as prayed for. After trial, the trial Court decreed the suit; and on appeal by the defendant, the lower appellate Court dismissed the appeal. Therefore, this appeal is filed by legal representatives of the deceased-defendant. At the time of admission of this second appeal, the then learned Judge of this Court did not identify substantial questions of law for determination in this second appeal. The then learned Judge simply admitted the second appeal without framing substantial questions of law. In any event, after hearing the appellants' counsel, the following ground Nos. 7(a), (b) and (d) of Memorandum of grounds of second appeal are identified herein:

(2.) Ground No. 7(c) does not arise since one of the attestors to Ex. A-1 suit agreement was examined as P.W-2 to prove Ex. A-1 agreement. The other attestor is no other than the defendant's son Raghavaiah himself. On considering oral and documentary evidence of both the parties, the Courts below came to the conclusion that Ex. A-1 suit agreement is true and supported by consideration coupled with delivery of possession. In my opinion, the said findings of fact are not liable to be reagitated in this second appeal under Section 100 C.P.C.

(3.) Placing reliance on Abdul Raheem V. Karnataka Electricity Board, 2007 14 SCC 138 of the Supreme Court it is sought to be contended by the respondent's counsel that the question as to whether the plaintiff was ready and willing to perform his part of contract by itself may not give raise to a substantial question of law and that substantial question of law should be formulated relying on or on the basis of findings of fact arrived at by the Courts below. Ground No. 7(b) is not wholly on readiness and willingness to perform his part of the contract by the plaintiff. The said aspect is one of the essential pre-requirements of a plaintiff for obtaining relief of specific performance. In the case on hand, as per findings of both the Courts below, Ex. A-1 suit agreement is true, and under Ex. A-1 agreement the plaintiff paid total consideration of Rs. 5,0007- to the defendant, and the plaintiff obtained possession of the suit site under the possessory agreement Ex. A-1. Nothing more is left with the plaintiff to perform under the suit contract except obtaining registered sale deed from the defendant. It is only for the said purpose, the plaintiff filed the present suit in the trial Court. On the other hand, the defendant who received the entire sale consideration and delivered possession of the suit site, is under an obligation to execute and register sale deed for the suit site in favour of the plaintiff in pursuance of Ex. A-1. In those circumstances, since nothing more is left with the plaintiff for performance, the concept of readiness and willingness on the part of the plaintiff to perform his part of the suit contract, does not arise at all.