K VENKATA RAO Vs. SUNKARA VENKATA RAO

JUDGEMENT

(1.) This second appeal under Section 100 of the Civil Procedure Code is directed against the Judgment and decree dated 13-10-1988 passed in AS No.25 of 1984 on the file of the Subordinate Judge, Peddapuram, confirming the judgment and decree dated 13-7-1984 passed in OS No.130 of 1982 on the file of the District Munsif, Prathipadu in East Godavari District.

(2.) The appellants herein are the defendants and the respondent herein is the plaintiff in the said suit OS No.130 of 1982. The respondent-plaintiff filed the said suit for granting permanent injunction restraining the appellants-defendants from interfering with his possession and enjoyment of the suit property. His case is that the defendants who are interrelated and belonged to one family are the owners of the suit property consisting of Ac.6.35 cents of dry land in survey number 10 and patta number 247 of Vommangi village, that they agreed to sell the same to the plaintiff at the rate of Rs. 1,700.00 per acre and executed an agreement of sale dated 7-8-1977 and in part performance of the said agreement of sale the defendants delivered the suit property to the plaintiff. It was agreed that the balance of sale consideration should be arrived at to the extent of land after measurement. Subsequently, the plaintiff got measured the suit land and it is Ac 6.35 cents only. When the defendants were postponing to execute a registered sale-deed after receiving the sale consideration, the plaintiff got issued notice dated 4-6-1978 calling upon the defendants to receive balance sale consideration of Rs.9,295 and to execute the registered sale-deed. The defendants though received the said notice failed to comply with the same. It is also pleaded that the defendants received the balance of sale consideration of Rs.9,295.00 through the elders on 10-12-1978. The plaintiff is in uninterrupted possession and enjoyment of the suit land from the date of agreement and paid the same by paying taxes. The defendants made attempts to enter into the suit land on 21-8-1981 for the first time and the plaintiff resisted their illegal acts. Hence the plaintiff filed the said suit for injunction simpliciter. Resisting the claim of the plaintiff, the defendants filed their written statement contending that the agreement of sale dated 7-8-1977 was not acted upon by the plaintiff as he failed to pay the balance of sale consideration and he was not ready and willing to perform his part of the contract, that the plaintiff issued the registered notice dated 4-6-1978 just a day prior to the date fixed to get the sale deed registered after payment of balance of sale consideration and that the plaintiff did not persue the matter nor informed these defendants as to when they should attend the Registrar's Office for performing their part of the contract. Hence, in view of the conduct of the plaintiff, the defendants re-entered into the possession of the suit property in the later part of 1978 and that they have been in possession and enjoyment of the suit land and the land never measured by the plaintiff and that the extent of the suit land was Ac.8.31 cents. The allegation that the extent of suit land was Ac.6.35 cents is incorrect. After receipt of the notice, the defendants raised a dispute before the elders and the defendants offered to pay back the advance amount, but, the plaintiff refused to take back the amount, and the plaintiff abandoned the contract. Hcncc, the defendants were advised by the elders to continue in possession of the suit land and as such they did not issue any reply to the plaintiff and the plaintiff never questioned the possession of the defendants when they re-entered into the suit land and the plaintiff's claim for specific performance of the agreement of safe is barred by time and that the plaintiff never offered balance of sale consideration as alleged.Hence, the plaintiff is not entitled for the permanent injunction as prayed for.

(3.) The trial Court settled the following issues for trial: (i) Whether the plaintiff is entitled for the injunction prayed for? (ii) To what relief?On behalf of the plaintiff, PWs.l to 3 were examined and Exs.Al to A9 were marked. The plaintiff got himself examined PW1. On behalf of the defendants DWs.l and 2 were examined and Exs.Bl to B6 were marked. Exs.Cl and C2 were also marked from the Court record. The second defendant got himself examined as DW2. On a consideration of the oral and documentary evidence on record, the trial Court recorded the following findings: (i) In part performance of the agreement of sale, the plaintiff was put into possession of the suit property and he continued to be in possession of the same till the date of filing of the suit; (ii) The plaintiff has paid Rs. 1,5007- as advance to the defendants under the agreement of sale and he did not pay the balance of sale consideration to the defendant under suit agreement;The trial Court recorded its further findings thus: ".......The time for specific performance Ex.Al runs from the date of Exs.A7 and AX the postal acknowledgment. The plaintiff has filed this suit on 26-8-1981 beyond three years of Exs.A? and A8 and there can be no doubt that the relief of specific performance by either of the parties of Ex.Al agreement is baned by limitation. The intention of the plaintiff filing this suit for permanent injunction is evident and it is only to circumvent the procedure by getting over the limitation for specific performance and by avoiding payment of Court fees. The relief of permanent injunction is equitable relief One who seeks equity must do equity. Without payment of balance of consideration to the defendants, I am of the opinion that the plaintiff would not be entitled to equitable relief of permanent injunction. In the circumstances, I am of the further opinion that the plaintiff would be entitled to the equitable relief of permanent injunction only on deposit of balance of the sale consideration of Rs.9,295.00 into Court."While recording these findings, the trial Court granted the following relief to the plaintiff: "In the result, the suit is decreed conditionally granting permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff in respect of the plaint schedule land only on condition of the plaintiff depositing the sum of Rs.9,295.00 into Court within two months from today and in default of making deposit of the said amount into Court within the stipulated date, the suit shall stand dismissed.''Each party was also directed to bear their own costs. Aggrieved of that Judgment and decree of the trial Court, the defendants preferred the appeal in A.S.No.25 of 1984 on the file of the Subordinate Judge, Pcddapuram. The learned Subordinate Judge i.e., tire first appellate Court set out the point for consideration in the appeal as "Whether there are grounds to allow the appeal?". On a review of the evidence on record, the learned Subordinate Judge confirmed the above said findings of the trial Court and dismissed the appeal. Challenging the said Judgment and decree of the first appellate Court, the defendants have come up with this second appeal.