MEDIKONDA VENKAYAMMA Vs. KOLAKALURI PEDA

JUDGEMENT

(1.) THIS is a second appeal by the unsuccessful plaintiffs 2 and 3 assailing the judgments respectively dated 08.09.2008 and 28.08.2003 of the learned Vin Additional District Judge, Guntur and of the learned Additional Senior Civil Judge, Narasaraopet, dismissing respectively the A.S.195 of 2003 and O.S.76 of 1992 filed by the sole plaintiff (since died) for Specific Performance of an agreement to sell dated 30.04.1987 and for perpetual injunction to restrain the defendant (since died) and his men from ever interfering with the possession and enjoyment of the dry land more fully described in the schedule annexed to the plaint.

(2.) (a) At the outset, it is to be noted that at the time of admission of the second appeal, this Court framed the following substantial questions of law. (1) Whether the Courts below acted in accordance with law in requiring further proof even after admission of the documents and their contents ? And (2) whether admitted facts stated in documents require any proof and, if so, what kind of proof? 02.(b) At the time of hearing, this Court had also framed the following additional substantial questions of law viz., (i) Despite the fact that Science of identifying thumb impression is an exact science and does not admit of any mistake or doubt, still, whether the Courts below are not correct in not accepting the opinion of the finger print expert, which is of vital importance and erred in rejecting exhibit -B1O? And, (ii) whether the appreciation of evidence and the application of evidence to the facts marshalled as was done by the Courts below is perverse?

(3.) TO adjudicate the lis and to answer the substantial questions of law, it is necessary to refer to, infra, the facts and chronology of events. The case of the plaintiff is this: ''The deceased sole plaintiff had purchased under two distinct agreements to sell a total extent of Ac.8.00 of dry land from his own brother Medikonda Guravaiah and one K.Peda Narsaiah. Medikonda Guravaiah having received the sale consideration amount for Rs.22,000/ - from the sole plaintiff had executed the agreement to sell dated 26.01.1979 and had also delivered possession of the said property under the said agreement to sell since the entire consideration was paid. Similarly, on the same day, the said K.Peda Narasaiah, the deceased/sole defendant, in the instant suit having agreed to sell the plaint schedule property for a total consideration of Rs.22,000/ - had received Rs.10,000/ - towards part of sale consideration but no written agreement was executed on the said day as only a part of sale consideration was paid to him. However, he had delivered possession of his property viz., the plaint schedule property to the sole plaintiff. Later, the balance sale consideration was paid by the sole plaintiff to the sole defendant (K. Peda Narasaiah) in two instalments and he had executed an agreement to sell dated 30.04.1987 clearly mentioning that possession was already delivered on 26.01.1979 as on that day both the vendors under the two transactions referred to above had undivided half share in the entire extent of land of Ac.8.00. The parties being related have kept quiet for some years without execution of the registered sale deeds though entire consideration amounts were paid. Ultimately, since regular registered sale deeds were not executed pursuant to the two agreements to sell, the sole plaintiff filed the present suit against K. Peda Narasaiah and also another suit O.S.74 of 1992 against Guravaiah, his brother. Medikonda Guravaiah had also filed a suit O.S.318 of 1991 for declaration of title and consequential injunction in respect of his property of an extent of Ac.4.00 against his own brother. All the three suits were tried jointly and by a common judgment dated 28.08.2003 the learned Additional Senior Civil Judge, Narasaraopeta, had dismissed the two suits viz., the present suit O.S.76 of 1992 and O.S.74 of 1992 which were filed by the sole plaintiff for specific performance and had partly decreed the suit OS.318 of 199 granting a declaration of title but, dismissing the said suit insofar as the relief of consequential injunction as obviously the said plaintiff, Guravaiah was found to be not in possession of the property. Admittedly, the matter between Guravaiah and his brother, who is the sole plaintiff herein, was compromised and pursuant to the agreement to sell, the said Guravaiah had executed a regular registered sale deed in favour of the sole plaintiff. In the circumstances, the legal representatives of the sole plaintiff who are aggrieved of the decree of dismissal of the suit O.S.76 of 1992 filed for specific performance against K. Peda Narasaiah had preferred A.S.195 of 2003. However, the said appeal suit was also dismissed. Therefore, the present second appeal is filed by them. '' Therefore, the vitally important question is - 'whether the said agreement to sell originally entered into between the deceased plaintiff and the deceased defendant on 26.01.1979 and was later reduced into writing on 30.04.1987 is true and valid and can be specifically enforced and a decree for specific performance of the said agreement to sell can be granted? ' In the background of the above narrated facts and events, the said question and the substantial questions inter alia need determination and adjudication.