GOLI NANOJI Vs. GUDANTI KAMALA DEVI

JUDGEMENT

(1.) Brief facts : Goli Nanoji Rao, the plaintiff in O.S. No. 121/80 filed the suit for specific performance of contract of sale dated 10-5-1980 and in the alternative for damages of Rs. 1,30,000/- against defendants 1 and 2 in the said suit. O.S. No. 24/81 was originally filed as O.P. No.47/80 by Guddanti Kamala Devi, widow of late Guddanti Seshaiah, who was shown as 3rd defendant in O.S. No. 121/80 against her sons, daughters and tenants and also the plaintiff in O.S. No. 121/80 praying for partition and separate possession of her 1/6th share in the plaint schedule building or in the alternative for maintenance at the rate of Rs. 1,000/- per month and also for creation of a charge over the plaint schedule building for securing the payment of maintenance. Both the suits were decided together though evidence was recorded independently. In O.S. No. 121/80 P.W. 1 to P.W.3, D.Ws. 1 and 2 were examined, Exs. A.1 to A.20 were marked. Likewise, in O.S. No. 24/81 P.W. 1, D.Ws. 1 and 2 were examined and Exs. A. 1 to A.3 and Ex. B, 1 were marked. On appreciation of evidence, the learned Judge after recording certain findings, the relief of specific performance was negatived and alternative relief of refund of Rs. 30,000/- received as earnest money from the plaintiff in O.S. No. 121/80 with interest at 18% per annum from the date of suit till the date of payment was ordered and it was further directed that they shall also pay a sum of Rs. 1,000/- being the costs of execution of the agreement of sale and the costs to the plaintiff as damages and they shall also pay the earnest money and damages to the plaintiff on or before 18-6-1993. As far as O.S. No. 24/81 is concerned, some quantum of maintenance had been awarded and charge was created over the property. It is not in controversy that the plaintiff in O.S. No. 24/81 is no more and hence the claim of maintenance at present doesn't survive. Goli Nanoji Rao, the plaintiff in O.S. No. 121/80 died and the legal representatives of deceased appellant in A.S. No. 620/95 were brought on record by order dated 24-1-2006 in A.S.M.P. No. 168/06.

(2.) A.S. No. 620/95 is preferred as against the judgment and decree made in O.S. No.121/80. A.S. No. 616/95 is filed as against the judgment and decree made in O.S. No.24/81 by the self-same Nanoji Rao. It is no doubt true that on record the death of Guddanti Kamala Devi had not been recorded but the Death Certificate would evidence the death of Guddanti Kamala Devi on 16-10-2004. It is stated that all the legal representatives already are on record in A.S. No. 616/95 and in the connected appeal in A.S. No. 620/95 certain legal representatives are already on record, representing the estate. At any rate, inasmuch as both the appeals are preferred as against the common judgment inasmuch as all the legal representatives are already on record in A.S. No.616/95, the rest of the legal representatives whether brought on record or not in A.S.No. 620/95, it would not seriously alter the situation.

(3.) Contentions of Sri V. Srinivasa Rao : The learned counsel representing the legal representatives of the appellants in both the appeals would submit that the learned Judge having recorded positive findings in relation to agreement of sale in question negatived the relief on the ground that the plaintiff in the other suit O.S. No. 24/81 had right of maintenance and on that ground the main relief of specific performance was negatived and the alternative relief of refund was ordered. The learned counsel also would maintain that not only that the said maintenance holder the plaintiff in O.S. No. 24/81 is no more but also in view of the fact that the original plaintiff is ready and willing to take the property even if it is annexed with such an obligation if any refusing the relief of specific performance cannot be sustained. Hence, the learned counsel would maintain that the appeals are to be allowed decreeing the suit for specific performance O.S. No. 121 /80 as prayed for and inasmuch as the maintenance claim came to an end, the other appeal preferred A.S. No. 616/95 also to be allowed.