Maddukuri Reddemma ( Died ) v. Mutta Venkateswara Rao,

HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No.105 of 2017 JUDGMENT :

This Second Appeal is preferred challenging the judgment and decree dated 31.12.2015 in A.S.No.25 of 2010 passed by the Senior Civil Judge, Tadepalligudem, West Godavari District (for brevity "the lower appellate Court"), partly confirming the judgment and decree dated 31.05.2010 in O.S.No.8 of 2002 passed by the Principal Junior Civil Judge, Tadepalligudem, West Godavari District (for brevity "the trial Court").

2.

The appellant is the plaintiff in the aforesaid suit. He filed the suit for specific performance of Ex.A.1 - Agreement of Sale dated 28.02.1986 and for permanent injunction restraining the respondents-defendants from interfering with his peaceful possession and enjoyment of the plaint schedule property. He died pending suit and his daughter was impleaded as 2nd plaintiff.

3.

According to the appellant, the 1st respondent, as a joint family Manager and as a General Power of Attorney Holder for respondent Nos.2 and 3, offered to sell the plaint schedule property to the deceased-1st plaintiff with a condition that he should discharge the debts due to the Large Sized Cooperative Society, Nawabpalem (for brevity "the Society") of Rs.4,281/-

and another to one Ms. Chekka Rama Chaya Devi of Rs.6,519/-. The 1st appellant alleged that he paid the debts as per the terms of the said Agreement of Sale; that after discharging the debt due to Ms. Chekka Rama Chaya Devi on 31.03.1986, he obtained a receipt from her, which was delivered to the 1st respondent in order to file the same into the Court, at his request, by retaining a xerox copy of the same, but the said document got misplaced. He contended that though he is ready and willing to perform his part of the contract and to obtain the registered sale deed, but the respondents were not cooperating. He also contended that he was in possession and enjoyment of the plaint schedule property and also entitled to the relief of perpetual injunction against the respondents.

4.

The 1st respondent filed a written statement, which was adopted by respondent Nos.2 and 3. They raised a plea that the suit is barred by limitation; that the deceased-1st plaintiff agreed to discharge the debts due to Ms. Chekka Rama Chaya Devi and to the Society, but he did not clear the debt payable by the 1st respondent to Ms. Chekka Rama Chaya Devi, though he had cleared the debt due to the Society. He denied receiving original of the receipt allegedly issued by Ms. Chekka Rama Chaya Devi for Rs.6,519/- on 31.03.1986 and retaining photo copy of it by the 1st plaintiff. He claimed that he paid Rs.21,700/- to the husband of the said lady on 31.07.1995 after she died. Thus, the respondents took a plea

that the deceased-1st plaintiff did not fulfil the terms of the Agreement of Sale executed by the 1st respondent and committed breach of it and so he is not entitled to the relief of specific performance of the said Agreement of Sale. 5.

Basing on the said pleadings, the trial Court framed the following issues:

1. Whether the suit is barred by limitation?

2. Whether the receipt dated 31.03.1986 is forged one?

3. Whether the plaintiff is entitled for specific performance as prayed for?

4. Whether the plaintiff is entitled for permanent injunction as prayed for?

5. If so to what relief?

6.

Before the trial Court, on behalf of the plaintiffs, the appellants examined P.Ws.1 to 3 and got marked Exs.A.1 to A.6.

On behalf of the respondents-defendants, the respondents examined D.Ws.1 and 2 and got marked Ex.B.1. After considering the material and evidence on record, vide judgment and decree dated 31.05.2010, the trial Court dismissed the suit holding that though the suit was within the period of limitation, the appellants did not establish that the deceased-1st plaintiff paid Rs.6,519/- to Ms. Chekka Rama Chaya Devi towards the debt due on behalf of the 1st respondent and thus, failed to perform their part of contract and hence they are not entitled to the relief of specific performance of the Agreement of Sale. It was also held that

the 1st plaintiff paid Rs.21,700/- on 31.07.1995 towards the debt due by the 1st respondent to Ms. Chekka Rama Chaya Devi, who died in the meantime, and since the appellants did not file any receipt to prove that they had cleared the debt payable by the respondents to Ms. Chekka Rama Chaya Devi, they are not entitled to any relief in the suit. 7.

Aggrieved thereby, the appellants preferred A.S.No.25 of 2010 before the lower appellate Court. The lower appellate Court, by judgment and decree dated 31.12.2015, allowed the appeal suit in part by granting refund of Rs.4,281/- paid by the deceased-1st plaintiff to the Society with interest @ 6% per annum from the date of execution of Ex.A.1 - Agreement of Sale dated 28.02.1986 till realisation, but the reliefs of specific performance and injunction were not granted. The lower appellate Court concurred with the findings of the trial Court and held that if the deceased-1st plaintiff had paid the debt owed by the 1st respondent to Ms. Chekka Rama Chaya Devi, he should have retained the original receipt and filed the same into the Court and since he did not do so, he did not perform his part of the contract and is not entitled to ask for specific performance of the Agreement of Sale. 8.

Assailing the said judgment and decree, the present Second Appeal is filed.

9.

Learned counsel for the appellants sought to contend that the findings of both the Courts below that the appellants were not entitled to the relief of specific performance or temporary injunction are not correct and that the Courts below ought to have accepted the evidence adduced on behalf of the appellants that the debt of Ms. Chekka Rama Chaya Devi was also discharged by the deceased-1st plaintiff during his life time, even though the receipt proving such discharge of debt was not filed.

10.

It is settled law that the relief of specific performance is an equitable relief. The plaintiffs must establish that the deceased-1st plaintiff has fulfilled the obligations under Ex.A.1 - Agreement of Sale. In the present case, admittedly, under Agreement of Sale, the deceased-1st plaintiff was to discharge the debt due by the 1st respondent to the Society as well as the debt due to Ms. Chekka Rama Chaya Devi. The respondents admit that the debt due to the Society has been discharged, but dispute the discharge of debt payable to Ms. Chekka Rama Chaya Devi. Had the deceased - 1st plaintiff or appellants produced the receipt allegedly issued by Ms. Chekka Rama Chaya Devi to the effect that the appellants discharged the said debt, they can claim the relief of specific performance. Since evidence to that effect was not produced before the Court and since no family member of the said lady was examined, both the Courts below had rightly held that

the appellants did not perform their obligations under the Agreement of Sale.

11.

Therefore, I am of the opinion that there is no substantial question of law arising for consideration in this Second Appeal and it is accordingly dismissed.

12. As a sequel, miscellaneous petitions pending, if any, shall stand closed. No order as to costs.

_______________________________ M.S. RAMACHANDRA RAO, J 10.03.2017.

Msr

HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO SECOND APPEAL No.105 of 2017 10.03.2017 Msr