MANNE VENKATA SUBBAMMA Vs. MANEPALLI MALLIKHARJUNUDU

JUDGEMENT

(1.) These two appeals are connected as they arise out of a common judgment given in two connected suits in O.S.Nos. 92 of 1968 and 94 of 1970 on the file of the Sub-Court, Machilipatnam.

(2.) The facts giving rise to these appeals are the following : O.S. No. 92 of 1968 is the suit for declaration that the agreement dated 19th December, 1967, entered into between the plaintiff and the first defendant in that suit for the sale of Ac. 3-91 cents of plaintiff's land in Parikigudem village, hamlet of Mandavalli, Kaikalur taluk of Krishna District, is rescinded and to direct the defendants to deliver possession of the suit land to the plaintiff together with mesne profits from fasli 1378 till delivery of possession. The agreement of sale was for Rs. 11,000 out of which Rs. 2,000 was received as advance on 19th December, 1967. The balance sale consideration had to be paid before the end of June, 1968 and the plaintiff had to execute a proper sale deed at the cost of the vendee. It was also stipulated therein that the balance sale consideration would carry interest at 12 per cent, per annum from 19th January, 1968 and that the plaintiff would deliver possession of the suit land to the first defendant only on the date of the sale. Second defendant in the suit is the husband of the first defendant who negotiated the suit transaction. On 13th January, 1968, first defendant paid a further sum of Rs. 2,000 which was also endorsed on the suit agreement. The balance of Rs. 7,000 remained unpaid. On 4th June, 1968, plaintiff issued a notice to the first defendant asking her to take a sale deed by 30th June, 1968, on paying balance of sale consideration and that the parties agreed to have the time as essence of the contract. He also agreed in that notice not to lease out the land to any one till 3oth June, 1968. In that notice plaintiff give time to the first defendant till 31st July, 1968, for full payment of the sale price and completion of the sale deed stating that in default the agreement would be rescinded. Thus by this notice plaintiff wanted to make time the essence of the contract. On nth June, 1968, first defendant issued a reply notice denying that time was the essence of the contract either by the said agreement or that the plaintiff was entitled to make it the essence by the notice under that clause, that the suit land was in the possession of Pindi Gangireddi as a tenant of the plaintiff as per terms of the lease deed, that the plaintiff had to get a rent of 20 bags of paddy for Sarva crop and half share of Dalva crop and that the plaintiff agreed to deliver possession of the suit land to the first defendant, if the first defendant were to pay Rs. 2,000 towards sale price and accordingly on 13th January, 1968 an amount of Rs. 2,000 was paid to the plaintiff and symbolical possession of the suit land was given to the first defendant and the first defendant was given half share in the Dalva crop and on 20th May, 1968, possession of the land was delivered to the first defendant by the tenant in the presence of the plaintiff,that the first defendant was ready to pay the balance sale price of Rs. 7,000 even on 31st January, 1968, but that on account of the suit O.S. No. 63 of 1966 on the file of the District Munsif's Court, Kaikalur filed by one Yemeni Suryanarayana plaintiff was not in a position to convey undisputed and marketable title of the suit land, that the first defendant was therefore not liable to pay any interest from 31st January, 1968, on the balance sale consideration of Rs. 7,000 and the plaintiff should get the attachment on the schedule lands removed.

(3.) Plaintiff sent a reply to the aforesaid notice denying the allegations made therein and asking the first defendant to deposit the entire balance consideration in the State Bank of India, Gudivada and intimate the particulars to the plaintiff so that he might remove the dispute in the Court and execute a sale deed in favour of the first defendant at her costs. He also made it clear in that notice that if the first defendant failed to do so it must be deemed that she was not ready with the money and that in the alternative the first defendant should deliver possession of the land, which was occupied by her by force.