S MAHABOOB BASHA Vs. B R MOHAN RAO

JUDGEMENT

(1.) This appeal is filed by the unsuccessful defendants in O.S.No.54 of 1978 on the file of Additional Subordinate Judge, Anantapur. Though as against respondents 3,6 to 11 and 13 the matter was dismissed for default at a particular point of time, the same had been restored by an order dated 14/10/2004 in CMP.No.14320of2004.

(2.) The respondents-plaintiffs filed the suit for specific performance of an agreement of sale dated 7/10/1968 with a further prayer to deliver the possession of the property to the plaintiffs. The first and second plaintiffs, viz., B.R.Mohan Rao and G.Sreeramulu, died and their legal representatives were brought on record. On the strength of the respective pleadings of the parties and having settled the issues, the learned Judge recorded the evidence of P.Ws.1 to3, D.Ws.1 to4, marked Exs.A-1 to A-16, X-1 to X-3, C-1 to X-3 and also C-1 to C-7 and ultimately arrived at a conclusion that in view of the fact that the plaintiffs having already deposited the balance of consideration of Rs.40,000.00 into Court by way of a Lodgment Schedule and in the light of the findings recorded on issues 1 to 4 and the additional issue, the suit was decreed with costs proportionately, and appellants- defendants 1 and 2 were directed to execute the sale deed in favour of the plaintiffs in respect of the plaint schedule property within two months from the said date, failing which the plaintiffs to proceed in accordance with law. However, the suit was dismissed for the relief of damages. Aggrieved by the same, the present appeal is preferred by the unsuccessful defendants.

(3.) Sri B. Adinarayana Rao, learned counsel representing the appellants had taken this Court through the respective pleadings of the parties, the evidence available on record and would contend that in the facts and circumstances of the case, the learned Judge had totally erred in granting the decree for specific performance. The learned counsel also would maintain that when the defendants took a specific plea in the written statement that the agreement of sale is a fabricated and forged document, the burden is on the plaintiffs to prove that Rabia Bi executed the same and the said burden was not discharged. The learned counsel also would maintain that except the interested testimony of P.W.1, there is no other evidence available on record and hence this evidence is highly insufficient to discharge their burden. The counsel also would maintain thatthe plaintiffs had notgiven any explanation for non-examination of the scribe. The counsel also made certain submissions relating to the alleged original executant Rabia Bi and she being an illiterate and innocent Pardanashin lady, the learned Judge should have taken note of the said aspect into consideration and should have negatived the relief to the plaintiffs. The counsel also while further elaborating his submissions pointed out to the evidence of the expert and the findings recorded in relation thereto. The learned counsel also pointed out that merely because some written statement was filed by Rabia Bi in yet other proceeding admitting the execution of the agreement of sale in question, that cannot be taken as an admission and however at any rate the said admission, even if to be taken into consideration, cannot be said to be a binding admission in the light of the peculiar facts and circumstances. The learned counsel also incidentally had referred to the other findings recorded by the learned Judge and had taken this Court through the evidence available on record. The counsel laid stress and emphasis on the question of limitation and had drawn attention of this Court to Article 54 of the Limitation Act, 1963, in this regard and further placed strong reliance on the decisions reported in Mahboob Pasha v. Syed Zaheeruddin, T.LMuddukrishana v. Lalitha Ramachandra Rao, K. Ramayya v. K.Nageswararad and also A. S.K.Krishnappa v. S.V.V.Somiah. The learned counsel also explained in detail how the period of limitation when once commenced could not be stopped or arrested and how Section 15(1) of the Limitation Act, 1963 would not come to the aid of the respondents-plaintiffs in the present case.