A R SETHU RAO Vs. D BHEEMESHWARA RAO

JUDGEMENT

(1.) This appeal which was earlier dismissed on 24-11-1992 was reopened on 1-10-1993 on the ground that it was earlier disposed of without notice to all the legal representatives of the 1st appellant. The appellants 1 and 2 are defendants 1 and 2 in O.S.1067/88 on the file of the Court of the IV Addl. Judge, City Civil Court, Hyderabad filed by the respondents 1 to 3 herein for specific performance of contract of sale dated 29-12 975 (Ex.A-2) by directing the defendants 1 and 2 execute the sale deeds in the name of the plaintiffs 1 to 3, and put them in possession of the plots 1, 2 and 3. Pending suit one Gopinath Sidhanti, 4th respondent herein was added as 4th plaintiff who was the nominee of Plaintiff No.2, while Defendant No.3 who was the other party to the Ex.A-2 and who is respondent No.5 herein was given up as no necessary party to the appeal.

(2.) The relevant facts which are necessary for the disposal of this appeal may be stated thus: On 10-11-1975, the respondents 1,2 and 3 together with respondents 5 and 6 agreed to purchase from A.K. Sethu Rao and his son Gopala Krishna 2100 Square Yards situated in rear portion of the House bearing No.6-1-117, Padmarao Nagar, Secunderabad at Rs.30/- per Sq.Yard. They paid earnest money of Rs.800/- each/ After the death of Sethu Rao on 25-11-1975, his wife Ramalakshmi, the 1st appellant herein and her son Gopalakrishna, 2nd appellant entered into agreement Ex.A-2 on 29-12-1975 with the respondents 1,2,3 and 5 for sale of Plot Nos.1,2,3 and 5 respectively to them. The 6th respondent was not party to this agreement, though he earlier agreed to buy one plot from late Sethu Rao on 10-11-1975. Clause-1 of the agreement says that late Sethu Rao and Gopalakrishna have already submitted lay-out plan to Municipal Corporation, Hyderabad for sanction after dividing the land into 5 plots and that the purchasers agree to do all the things necessary on their responsibility and risk to get the lay-out sanctioned. Clause-2 acknowledges receipt of Rs.12000/- from the purchasers at Rs.3000/- each (paid in addition to Rs.3200/- paid already) while in Clause-3 it was mentioned that respondents 1 to 3 and 5 shall take plots 1,2,3, and 5 respectively and that they will pay the balance consideration within 30 days after the lay-out is sanctioned. As per clause-4, if for any reason, the vendors failed to execute the sale deeds, they shall refund to the purchasers the entire earnest money of Rs.15,200/- within 60 days from the date of knowledge of such liability or failure. Under Clause-5, in the event the lay-out as submitted by the vendors is not sanctioned by the Municipal Corporation of Hyderabad, the purchasers agreed to forfeit a sum of Rs.4000/- from out of the advance money paid so far and will be entitled to the refund of the balance. Clause-6 provides that in the event of failure on the part of the purchasers to pay the balance consideration after the lay-out is sanctioned, the purchasers agreed to forfeit a sum of Rs.12000/-. It was also agreed that in case the vendors do not register the sale deeds after the lay-out is sanctioned, the vendors shall refund the entire amount received by them together with Rs.12000/- as liquidated damages. The Municipal Corporation of Hyderabad informed the vendors on 2-8-1976 (Ex.A-6) that the lay-out plan submitted by Sethu Rao and his son has been communicated to them for the demarcation of boundaries, roads and open space and that this communication does not however confer any right of sale, lease or allotment of plots and that the lay-out plan will be released only on the payment of entire betterment charges. On 3-8-1976, the vendors submitted an application (Ex.X-2) to the State Government seeking exemption under Section 20 of the Urban Land (Ceiling ' and Regulation) Act, 1976 (for short the 'Ceiling Act') which came into force on 17-2-1976 so that they can sell the land in respect of which late Sethu Rao has already entered into agreement with the 5 buyers. Earlier, in January, 1975, late Sethurao was granted permission under A.P. Vacant Land in Urban Areas (Prohibition of Alienation) Act, 1972 for sale of his land in favour of different parties including the respondents herein. The vendors filed their declaration under Section-6 of the Ceiling Act in September, 1976. As desired by the competent authority, the respondents 1,3 and 4 filed an application on 25-4-1978 before him to release 2100 Sq. Yards from the holdings of appellants 1 and 2 for the purpose of sale in their favour. The 5th respondent did not, however, join in this application. The appellants failed to receive the balance sale consideration offered by the respondents, who consequently filed the suit on 28-12-1978. After receipt of the summons, the 2nd appellant wrote Ex.X-1 on 27-1-1979 to the State Government requesting it not to pass orders releasing 2100 Sq. Yards for sale in favour of the respondents. However, the Government issued G.O.Ms.No.358 dated 26-2-1979, (Ex.A-8) granting exemption in respect of 1,757-87 Sq.Metres (2100 Sq. Yards) so as to enable the defendants 1 and 2 to alienate the same in favour of the respondents 1,2,3 and 5. During the pendency of the suit, the appellants gave reply to the notice issued by the respondents prior to filing of the suit and also returned 4 cheques for Rs.2800/- each to the respondents 1,2,3 and 5 who in turn sent the same back to the applicants on 15-3-1979.

(3.) The suitwas dismissed and on appeal the learned single Judge allowed the appeal filed by the respondents. Against this order, the defendants have brought in this L.P.A. Pending L.P.A; the 1st appellant died on 12-9-1990 leaving behind her four daughters and son who is already on record. But this factwas not brought to the notice of the Division Bench which heard the appeal earlier. After the dismissal of the appeal, the appellants 3 to 6 filed C.M.P.No.6771 /93 for review, which was dismissed on 1-10-1993 in view of the separate order passed by the Division Bench setting aside the order passed earlier dismissing the appeal on the ground that no notice was given to all the Legal Representatives of the 1st appellant. The four daughters are now brought on record in C.M. P.No.3602/95 by order of this Court dated 18-9-1995.