MANCHINENI VENKAYYA Vs. MANCHINENI SESHAYYA

JUDGEMENT

(1.) THIS second appeal is brought by the Plaintiff as against the judgment and decree of the Subordinate Judge of Guntur in Appeal Suit No. 417 of 1948 reversing the judgment and decree of the District Munsif of Guntur in Original Suit No. 207 of 1947. The appellant herein filed a suit for specific performance of a contract, dated 16 -11 -46, entered into by the 1st Defendant agreeing to sell the plaint schedule property to him, for a declaration that the sale deed executed by the 1st Defendant in favour of the 2nd Defendant on 8 -4 -1947 was not binding upon him and for delivery of possession of the property.

(2.) THE 1st Defendant was ex parte and did not file any written statement. The 2nd Defendant contended that the suit agreement was not true, that the 1st Defendant took an advance of Rs. 800/ -from him and executed an agreement of sale dated 25 -8 -1946, that the sale deed dated 8 -4 -1947 was executed in his favour in pursuance of the agreement of sale and that the suit was consequently not maintainable. In paragraph 7 of the written statement, he badly denied the Plaintiff's willingness to perform the contract. The two main issues that were raised in the trial Court were as follows:

(3.) AS against the judgment and decree of the (Prl) Subordinate Judge, the Plaintiff has preferred the above second appeal. The learned Advocate for the appellant contended that the Subordinate Judge erred in permitting the 2nd Defendant to raise a new point for determination, which was not to be found in the pleadings or in the issues and also in holding that the Plaintiff repudiated the contract. I agree that both the contentions are valid in law and that the second appeal should be allowed and the judgment of the trial Court restored.