MATTI BASAWESWARA RAO Vs. ARZA VEERAIAH

JUDGEMENT

(1.) These two appeals and cross-objections arise out of a common judgment in OS No.8 of 1995 and OS No.2 of 1995 dated 15-4-1996 on the file of the Subordinate Judge's Court at Avanigadda. The appellant in AS No.2901 of 1996 is the defendant No.2 in OS No.8 of 1995 and the respondent No.1 (plaintiff in OS No.8 of 1995) filed cross objections. The appellant in AS No.30 of .1997 is the plaintiff in OS No.2 of 1995, who was defendant No.2 in OS No.8 of 1995. The defendant No.4 in OS No.2 of 1995 is the defendant No.1 in OS No.8 of 1995. Defendants 1 to 3 in OS No.2 of 1995 are not parties to OS No.8 of 1995.

(2.) For the sake of convenience, the parties will be referred to as they are arrayed in OS No.2 of 1995.

(3.) The suit OS No.2 of 1995 is one for specific performance of an agreement of sale dated 20-3-1979 executed by defendants 1 and 2 executed in favour of Defendant No.4. The plaintiff claimed that defendants 1 and 2, who are husband and wife, are the owners of the suit schedule property. Defendant No.3 is their son. Defendants 1 and 2 wanted to sell and the plaintiff intended to purchase the property (since he has adjacent land) in the name of his wife. However, since one T. Rama Rao, a sister's son of the defendant No.1 was cultivating the said land and another Ac.0-50 cents of the adjoining land as tenant of defendant Nos.1 and 2 and threatening that he would not quit the land, Ranga Rao, the husband of defendant No.4 suggested to purchase the land in the name of the defendant No.4. Accordingly, the suit agreement in Ex.B1 was executed on 20-3-1979 by defendant Nos.1 and 2 in the name of defendant No.4 to an extent of Ac.4-00 for consideration of Rs.8,000.00per acre. So, the plaintiff is the real purchaser and he paid Rs.2,000.00 earnest money on the date. It was agreed that a sum of Rs.3,000.00be paid by the end of April, 1979 and the balance payment after measurement of land before the end of May, 1979. Further, a counter agreement was also executed "of the even date. Both agreements were handed over to the plaintiff. The plaintiff paid a further sum of Rs.3,000.00 on 1-5-1979 which was duly endorsed. On measurement the area was found to be Ac.3-45 cents and the total consideration was coming to Rs.27,600.00. After adjusting Rs.5,000.00already paid, the plaintiff made further payment of Rs.22,268.00 leaving a balance of Rs.332.00 which was to be paid at the time of registration. The plaintiff was put in possession on 1 -5-1980 and the same was endorsed on the agreement. The plaintiff is a signatory to the counter agreement. Since the existing house fell down, the plaintiff constructed a house, which was numbered as Ass.No.129 with door No.3/28. The plaintiff is residing in the said house and paying taxes. The land revenue is paid partly in the name of the defendant No.4 and partly in the name of the plaintiff. However, subsequently, differences arose between the plaintiff and the defendant No.4 since Ranga Rao, the husband of the defendant No.4 required loan of Rs.6,000.00and the plaintiff arranged for the same with his junior maternal aunt's husband V. Giriraju of Kothapet, in the year 1981 with promise for repayment at the time of marriage of the eldest son of defendant No.4 which remained unpaid, even after his marriage. Since the plaintiff was demanding the money, the relations got strained. The plaintiff gave the agreement and the land revenue receipts to the husband of defendant No.4 to create confidence. However, at the harvesting of crop in 1981, Ranga Rao sought to take the crops. So the plaintiff got issued a notice dated 12-1-I9S2 to the defendants 1 and 2 for execution of the sale-deed, which was not replied to. Expecting that defendant No.4 would file a suit, the plaintiff filed a caveat on 18-1-1982, which was got refused by the defendant No.4 in Bhavadeverapalli village. And avoiding the Courts at Machilipatnam, defendant No.4 filed OS No.24 of 1982 on the file of the Principal District Munsif, Avanigadda on 22-1-1982 and got an ex parte order of injunction in IA No,34 of 1982. Though the plaintiff got the first crop, the second crop was taken away by the defendant No.4 under the guise of the injunction orders. The loss of the second crop of 70 bags was worth Rs.3,000.00. While so, defendants 1 and 2 executed a sale-deed on 20-5-1982 and got registered on 21-5-1982 for an extent of Ac.3-55 cents. Though consideration was paid by the plaintiff, it was wrongly shown as if it was paid by the defendant No.4. The sale is nominal, collusive and fraudulent. In the written statement filed by defendants 1 and 2 in OS No.24 of 1982, it was admitted that the real purchaser is the plaintiff but taken in the name of the fourth defendant. Hence defendants 1 and 2 are under an obligation to execute the sale-deed in favour of the plaintiff and the defendants 3 and 4 should join the same. Hence the suit.