K SHYAMSUNDER Vs. N RAMACHANDRAIAH

JUDGEMENT

(1.) The tenant claiming to be an agreement holder of the property in question instituted the suit O.S.No.456/83 on the file of I Additional Judge, City Civil Court, Hyderabad praying for the relief of specific performance directing defendants 1 to 3 to execute registered sale deed and 4th defendant also to join them in execution of the said sale deed so as to comply with the statutory requirements and to declare the sale deeds dated 20-10-1981 and 11-6-1982 executed by 5th defendant in favour of the 4th defendant as void, ineffective and inoperative and for certain other ancillary reliefs. Defendants 1 to 3 filed written statement virtually admitting the stand taken by the plaintiff. Defendants 4 and 5 filed separate written statements resisting the same. The learned Judge having settled the Issues, recorded the evidence of P.W.1 and P.W.2 and D.W.1 and D.W.2, marked Exs.A-1 to A-14 and Exs.B-1 to B-12 and ultimately decreed the suit in part directing execution of a registered sale deed in relation to 3/4th of the undivided share in the plaint schedule property in favour of the plaintiff after receiving the balance sale consideration within one month from the date of the Judgment with certain other further ancillary observations. Aggrieved by the same the matter was carried by way of Appeal, the present Appeal, C.C.C.A.No.103/93, and inasmuch as the 1st appellant and the 4th respondent died, appellants 2 to 7 and respondents 2 and 3 who had been already on record had been recorded as the legal representatives by the order dated 28-5-2007. Even during the pendency of the suit O.S.No.456/83, the 4th defendant Smt.P.N.Sumathi died and the legal representatives, defendants 6 to 11, were added as per orders in I.A.No.299/93 dated 23-3-1993.

(2.) Pleadings of the respective parties: For the purpose of convenience, the parties hereinafter would be referred to as shown in O.S.No.456/83. Averments made in the plaint : The plaintiff pleaded in the plaint as hereunder The plaintiff occupied the house property bearing Municipal No.3-5-353 situate at Vithalwadi, Narayanaguda, Hyderabad consisting of two rooms, one hall, one verandah with frontage, kitchen, bathroom and two latrines, totally admeasuring about 125 sq. yards as a tenant of Smt.K.Manibai alias K.Maniamma w/o.Sri K.Srinivasa Rao, on or about 8-3-1973. The said Smt.K.Maniamma had sold one room and a piece of land adjoining the aforesaid property to provide funds for her unemployed son K.Shyamsunder, the 5th defendant, with the understanding and family settlement that after her death the rest of her property, namely, the suit property under the occupation and possession of the plaintiff, should go to her daughters, defendants 1 to 3 and Smt.K.Maniamma died on 26-8-1981. It was further pleaded that as against this background, to the knowledge of the 4th defendant and her husband Sri P.V.Narsing Rao, the plaintiff entered into an agreement of sale on 11-9-1981 with defendants 1 to 3 to purchase the suit property for a price of Rs.60,000/- and paid an advanced of Rs.6000/- on the same day. The possession of the suit property by the plaintiff since the date of the aforesaid sale agreement dated 11-9-1981 had been as an agreement holder and in part performance of the said agreement. Although aware of all these facts, the 4th defendant got issued to the plaintiff a notice dated 5-1-1982 with false allegations claiming to be the purchaser and called upon the plaintiff to vacate the suit property. The plaintiff sent a reply notice dated 28-1-1982 and the same was received by the 4th defendant through her Counsel on 6-2-1982. From the notice dated 16-8-1982, the plaintiff learnt that the suit property had been conveyed to the 4th defendant by the 5th defendant through two sale deeds dated 20-10-1981 and 11-6-1982. The allegation that the 4th defendant purchased the suit property from the 5th defendant after due enquiries and that the latter was alleged to had been bequeathed the same by his mother through a Will is totally false and invented to cover up the invalid, illegal and fraudulent transaction. It was further pleaded that the aforesaid two sale deeds are void, sham, bogus, invalid and illegal and brought into existence by defendants 4 and 5 with ulterior motives and deserve to be set aside as such. It was further specifically pleaded that the plaintiff had been ready and willing ever since 11-9-1981, the date of the suit agreement, to perform his part of the contract by paying the vendors, defendants 1 to 3, the balance of purchase money and take a regular registered sale deed in his name and at his cost as to stamp and registration charges. Averments made in the written statement of defendants 1 to 3 : Defendants 1 to 3 admitted the averments in para-3 of the plaint and further the 5th defendant agreed at the time of sale of one room and the adjacent place separately by two sale deeds by Smt.Maniamma, their mother. It was further admitted that the said properties were sold to provide funds to the 5th defendant who was unemployed, two his share in the properties belonging to Smt.Maniamma and the rest of the property i.e., the suit property, should go to the defendants 1 to 3 after the death of Smt.Maniamma separately. The room along with open space was sold to the 4th defendant who had constructed one room on that open piece of land for his tailoring shop. Defendants 1 to 3 further admitted that they had entered into an agreement with the plaintiff on 11-9-1981 to sell the suit property to him for a sale consideration of Rs.60,000/- and received an advance of Rs.6000/- from him on the same day and passed a receipt in favour of the plaintiff. The plaintiff who was already living in the suit premises as tenant was put in possession of the suit property as agreement holder in part performance of the said sale agreement. Subsequent to 11-9-1981 the defendants 1 to 3 received a further sum of Rs.7400/- in different instalments from the plaintiff towards sale consideration. It was further pleaded that defendants 1 to 3 had no knowledge of the notices said to have been exchanged between the plaintiff and the 4th defendant. The 5th defendant has no right or authority to sell the suit property to the 4th defendant. The 5th defendant received the sale proceeds of one room and open place sold by their mother towards his share in the property left by Maniamma and hence the 5th defendant has no right, title or interest in the suit property. The defendants 1 to 3 are not aware of any Will alleged to have been executed by their mother late Maniamma. It was further pleaded that the defendants 1 to 3 could not execute and register the sale deed in favour of the plaintiff as he issued a notice to them on 19-7-1982 informing them of the sale deed said to have been executed by the 5th defendant in favour of the 4th defendant in respect of the suit property which had cast a cloud on the title of these defendants to the suit property. The defendants 1 to 3 asserted that they have full right and title and absolute authority to sell the suit property and the 5th defendant has no right, title or interest in the suit property and these defendants are willing to execute and register the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.46,600/- from him. Averments made in the written statement of 4th defendant : The 4th defendant denied the allegations made in the plaint and had further pleaded that the plaintiff entered into the property as a tenant and still continues as a tenant. The property was sold to the 4th defendant by Smt.Mariyamma solely to meet the responsibilities, maintenance and to meet the necessities of the whole family. It is admitted that the 5th defendant was unemployed at that time and there was no other source of income excepting the rent for the maintenance of the family and the 4th defendant was informed that due to burden to repay the loans which were taken by her from others, it was deemed proper by Smt.Maniamma to sell the front room along with the open space to the 4th defendant to meet her necessities of the family. There was no occasion to enter into an agreement of sale with the plaintiff and there was no occasion to have information or knowledge to Sri P.V.Narsingh Rao regarding any agreement of sale as there was never any agreement of sale with the plaintiff. The fact is that Smt.Maniamma in her life time had entered into an agreement to sell the rear portion of the house bearing M.C.H.No.3-5-533, Vittalwadi, Narayanguda, Hyderabad. The beneficiary executed the sale deed and concluded the agreement of sale entered into by the deceased Maniamma. As such the question of entering into an agreement with the plaintiff is utterly false and concocted and the suit is frivolous with the intention to vex the defendants with sole intention to harass the defendants 4 and 5 and also to make illegal gains. The 4th defendant had executed the sale deeds on the referred dates and they are true and the allegations set off by the plaintiff are all false and taken up only with the intention to harass the parties and give vent to his bitterness against the defendants 4 and 5. It is amazing to note that the plaintiff himself in his own writing had admitted the ownership and title in the name of the 5th defendant in the rental receipts issued to him for the rents paid in the month of September 1981 onwards which amply reveal the fact of the 5th defendant being the owner and it goes to prove that the Will executed by Smt.Maniamma was within the knowledge and information of the plaintiff and it was duly acted upon. The plaintiff had not come to the Court with clean hands and also never offered to deposit the agreed alleged price consideration for sale in the Court to show his bona fides and the means of it. The plaintiff though a Government servant had adopted illegal means and abused the law and had instigated the defendants 1, 2 and 3 under the greed or unlawful gains. The plaintiff and the defendants 1, 2 and 3 had colluded with ill-motives and the signatures of the defendants 1 to 3 are only with intent to create false case under this pretext as without the collusion the plaintiff shall not have any ground for filing the suit and as such had entered into a conspiracy to deprive and cause loss to the defendants 4 and 5 from their legal rights and to cause injury to them beyond repair and also with ill-motives to make wrongful gains. There is no cause of action for the plaintiff to file the suit. The relief of specific performance being value for Rs.60,000/- is not disputed but the other reliefs are not valued properly and no Court fee is paid and hence the suit be dismissed with exemplary costs as the defendants 4 and 5 had been unnecessarily dragged to the Court and made to run from post to pillar to meet the allegations and fictitious creation of the plaintiff. Averments made in the written statement of the 5th defendant : It was pleaded that the description of the parties is not correct as incorrect residential address of the parties had been given with bad intention to facilitate plaintiff's concocted case. The contents of para-3 of the plaint had been denied except to the fact that the plaintiff entered the suit property as a tenant. It was further pleaded that still the plaintiff continues to be a tenant. It is true that Smt.Maniamma died on 26-8-1981 and it was denied that late Smt.Maniamma sold a room and piece of land adjacent to it to provide funds to the 5th defendant's needs. On the other hand, late Smt.Maniamma sold the property to meet the domestic needs of her family as a whole. There was no question of the 5th defendant staking any claim to the property during the life time of Maniamma nor did late Maniamma apportioned the suit property as contended by the plaintiff by way of any settlement. On the other hand late Maniamma, the mother of the defendants in her Will dated 17-5-1977 wished that the 5th defendant should lookafter the 3rd defendant, namely Nirmala, being estranged from her husband. The 5th defendant is faithfully carrying out the wishes of his mother and the 3rd defendant-Smt.Nirmala continues to stay with him as admitted by the plaintiff in his legal notice dated 19-7-1982. The contents of para-4 of the plaint had been denied and it was further pleaded that the 5th defendant is not aware of any transactions between the plaintiff and the defendants 1 to 3 nor is he aware that the 4th defendant's husband viz., Sri P.V. Narsing Rao had the knowledge of the same. It was denied that the plaintiff resided in the suit house as an agreement holder. The plaintiff's residence in the suit premises was as the tenant of the 5th defendant which fact was admitted by the plaintiff himself vide rental receipt Nos.34, 35, 36 and 37 respectively dated 2-9-1981, 1-10-1981, 1-11-1981 and 3-12-1981 which are all in the plaintiff's own hand-writing. It was further pleaded the 5th defendant is not fully aware of the exchange of various legal notices between the plaintiff and the 4th defendant, except that the 4th defendant who is the purchaser informed the 5th defendant about the plaintiff creating trouble in taking possession of the property, the 4th defendant having filed an eviction petition before the Rent Controller. It was further pleaded that it is true that the 5th defendant as the beneficiary and executor of late Maniamma's Will had sold the suit premises in two stages vide sale deeds dated 20-10-1981 and 11-6-1982. The plaintiff's contention that the Will of late Maniamma is fabricated by the 4th defendant and the 5th defendant had been vehemently denied. On the other hand it was pleaded that the plaintiff who entered the suit premises posing as a tenant with good intent to the mother of the 5th defendant, now wants to usurp the property by abusing his social status and creating rift between the 5th defendant and his sisters. Hence the plaintiff's suit itself is filed with ulterior motives and deserves to be dismissed in limini. It was further pleaded that any transaction regarding the suit property between the plaintiff and defendants 1 to 3 is not binding on the 5th defendant who, as the executor of late Maniamma's Will is the title holder of the suit property under Law and hence the same amounts to criminal manipulations for which the plaintiff will be held responsible.

(3.) Issues settled by the trial Court : 1. Whether the agreement of sale relief prayed upon by the plaintiff with defendants 1 to 3 is valid and binding ? 2. Whether the payments pleaded by the plaintiff are true ? 3. Whether the plaintiff is entitled for the reliefs of cancellation of sale deeds dated 20-10-1981 and 11-6-1982 ? 4.Whether the plaintiffs are entitled for the relief of specific performance of contract of sale ? 5. To what relief ?