D PANDURANGA JOSHI Vs. KONERU SESHAGIRI RAO

JUDGEMENT

(1.) The judgment and decree of the Additional Chief Judge, City Civil Court, Hyderabad in O.S.No. 186 of 1982, dated 26-2-1983 are in challenge in this appeal. Appellants are the defendants. Respondent is the plaintiff and he filed the suit for specific performance of the suit agreement of sale, dated 28-12-1979 against the appellant No. 1 to sell the suit schedule property viz., a house bearing No. 12-10-98 situated at Seethaphalmandi, Secunderabad. The suit was decreed as prayed after a contest whereby the defendants were directed to execute the sale deed in favour of the plaintiff on receiving the balance of sale consideration in terms of the agreement.

(2.) The oral evidence comprises in the testimony of the plaintiff as per P.W.1 and witnesses as per P.W.2 and 3 and that of defendants as per D. Ws. 1 and 2 and witnesses as per D.W.3 and 4 respectively. The documentary evidence comprises in Exs. A-1 to A-5 for the plaintiff and Ex.B-1 to B-15 respectively for the defendants and Ex.X-1, copy produced through the witness D.W.3 (which is the original of Ex.B-11). The defendants having been aggrieved by such a judgment and decree have chosen to file this appeal.

(3.) It was alleged that although the defendant No. 1, the absolute owner of the suit house had agreed to sell itto the plaintiff for a consideration of Rs. 1,90,000/- on receiving an advance of Rs. 3,000/- with a stipulation that he would obtain the necessary permission from the competent authority under the Urban Ceiling Act in addition to producing proof of payment of municipal tax, etc., he failed to perform the said terms, the plaintiff sent a telegram to defendant No. 1 on 19-6-1980 demanding him to execute the sale deed on receiving the balance of the sale consideration for which no reply was received and therefore, the plaintiff after issuing a legal notice, dated23-6-1980 to defendant No. 1 for which a reply was received on 27-6-1980 and since the defendant No. 1 failed to execute the sale deed, he had to file the suit. The defendant No. 2 is the son of the defendant No. 1. The defendantNo. 1 admitting the execution of the sale agreement in favour of the plaintiff contended that the suit property is a coparcenary property of him and his son, there was a partition on 19-1-1979 of the joint family property wherein the suit house fell to the share of defendant No. 2 regarding which a Memo of partition list was prepared on 26-1-1979 to evidence the partition, the Defendant No. 2 collected the rent from the tenants in the suit house and therefore, he could not have executed the suit agreement in favour of the plaintiff. He further contended that the plaintiff, who is the rich contractor and the neighbour of defendant No. 1 and also his friend, prevailed upon him to execute the suit agreement with his assurance that he would get the sale deed executed by defendantNo. 2 also although he pleaded that the suit house had fallen to the share of defendant No.2 in a partition, that the suit agreement was not meant to be acted upon and therefore, he had sent a letter to him in January, 1980 informing him that the sale deed cannot be executed as the suit house belongs to defendant No.2 and that he was prepared to refund the money and ultimately, he cancelled the suit agreement and wrote to the plaintiff on 14-3-1980 along with a cheque for Rs. 3,000/- by way of refunding the advance amount and only thereafter,he received the registered notice from the plaintiff. Therefore,he contended that the plaintiff cannot get the relief of specific performance of the suit agreement as against him. He also pointed out thatthe defendantNo.2 filed asuit against him in O.S.No.517 of 1980 in July, 1980 to restrain the defendant No. 1 from alienating the suit house along with another house and also questioned the agreement of sale executed by him in favour of the plaintiff and it was decreed. Therefore, he contended that he is legally prevented from executing the sale deed in favour of the plaintiff in terms of the suit agreement. The defendant No.2 denied the right of defendant No. 1 regarding the suit house as it fell to his share in a partition as above and he was the absolute owner subsequent from 19-1 -1979, he and his minor sons had obtained a decree against defendantNo. 1 not to alienate the properties of him and his children and therefore, the plaintiff is not entitled to get the relief of specific performance as against the defendant No. 1.