RAGALA KANAKAIAH Vs. VASIREDDY SURYANARAYAN

JUDGEMENT

(1.) This appeal is filed by the first defendant as against the decree and judgment made in OS. No. 155 of 1983 on the file of the Court of Subordinate Judge, Machilipatnam, Krishna District. The said appellant died during the pendency of the appeal and appellant No.2 was brought on record as his legal representative, who is at present prosecuting the present litigation. The respondent is the plaintiff and second defendant is shown as not necessary party to the appeal.

(2.) The facts in brief are as hereunder : The respondent herein-plaintiff instituted OS. No. 155 of 1983 on the file of the Court of Subordinate Judge, Machilipatnam, praying for the relief of specific performance and for other ancillary reliefs. The suit was resisted by filing written statement and after settlement of issues, the learned Judge recorded the evidence of PWs. 1 to 6 and DWs. 1 to 5 and also marked Exs.A1 to A16 and Exs.B1 to B17 and ultimately came to the conclusion that the respondent herein- plaintiff in the suit is entitled for the relief of specific performance. Aggrieved by the same, the present appeal was preferred.

(3.) Contentions of Sri G. Vidyasagar : Sri G. Vidyasagar, the learned Counsel representing the appellant made the following submissions: The Counsel would submit that the document in controversy on the strength of which the suit was instituted is a forged document and in fact the expert also opined that the signatures do not tally but however unfortunately due to the death of the Counsel the said expert was not examined. The learned Counsel would also submit that the fact that the sister of respondent-plaintiff is the wife of first appellant i.e., present second appellant in the appeal, who was brought on record as legal representative, is not in serious controversy. The Counsel would also submit that on careful reading of the respective pleadings of the parties and also the evidence available on record, it is clear that the first appellant-first defendant owned substantial properties. Whereas the respondent-plaintiff is not so rich and apart from the said fact large family is depending on him and he has no capacity to raise such funds to purchase the property. The learned Counsel also pointed out the episode of Sridevi and would maintain that in the light of the differences which arose between the parties, this litigation had been thought of. While further elaborating his submissions, the learned Counsel would also maintain that though PW.4 one of the attestors had been examined, the said witness was treated as hostile and he had not supported the version of PW. 1. The learned Counsel would also maintain that the other witnesses PWs.2 and 3 no doubt deposed that they were present at the time of transaction and the nature of evidence in this regard appears to be more artificial and hence in view of the same, agreement of sale may have to be viewed with suspicions. The learned Counsel had taken this Court through the oral evidence available on record in detail apart from the documentary evidence placed before the Court and would contend that in the light of the facts, the learned Judge instead of negativing the relief of specific performance had totally erred in decreeing the suit. The learned Counsel would also point out that these lands are fertile lands yielding substantial income and hence the stand taken by the respondent-plaintiff that the first appellant-defendant would have agreed to sell the said property at a paltry sum also cannot be believed. The Counsel would also maintain that merely because tenancy pleaded by the second defendant is not believed. That may not be a ground to grant the relief of specific performance. The Counsel also would contend that at any rate the relief of specific performance being discretionary in the light of the nature of the evidence adduced by the parties decreeing the suit for specific performance as such cannot be sustained.