% APHC010212822015 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI \i O \\o 0 \V- 'A MONDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE '} Sr m '.y av-.'-'s-’ / c 'I \\ ■c- M 'k PRESENT HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL No.553 of 2015 Between: Setti Chandra Rao, S/o. Kondala Rao, Aged 79 years, Occ: Agriculture R/o.H.No.3-63, Velanka Village, Chillangi Post, Kirlampudi Mandal, East Godavari District, A.P. ) ...Appellant/ Respondent No.2/Defendant No.2 AND 1. Setti Suryakantam, W/o Appa Rao, Aged 80 years, Occ: Housewife, R/o Velanka Village, East Godavari District. 2. Setti Veera Swamy, (Died as per LRs) 3. Setti Kamaraju, S/o Appa Rao, Aged 55 years, Occ: Cultivation, R/o Velanka Village, East Godavari District. 4. Makineedi Venkata Lakshmi, W/o Adinarayana, Aged 50 years, Occ: Housewife, Krishnapuram, Tondangi Mandal, East Godavari District. ...Respondents/ Appellants/Plaintiffs 5. Yelamanchili China Veerraju, W/o China Appa Rao, Aged 71 Occ: Housewife, R/o Velanka Village, East Godavari District. years. ...Respondent/ Respondent No.1/Defendant No.1 6. Smt Polaratnam, W/o. Late Setti Veeraswamy, Aged about 55 years. Housewife, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 7. Setti Apparao, S/o. Setti Veeraswamy, Aged about 36 years, Occ: Private Service, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 8. Setti Nageswara Rao, S/o. Setti Veerasikamy, Aged about 34 years, Occ; Private Service, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 9. Adabala Surya Varalaxmi, W/o. Adabala Rambabu, Aged about 32 years, Housewife, Palem Village via Veeravaram, Kirlampudi Mandal, East Godavari District. (As per the Court Order dated 12-12-2024, Respondent Nos.6 to 9 brought on record as LRs of the deceased Respondent No.2, vide I.A.No.1 of 2021 inS.A. No.553 of 2015) are ...Respondents Appeal under Section 100 of C.P.C, aggrieved by the judgment and decree dated 21.10.2009 passed in A.S.No.260 of 2006 on the file of IV Additional District Judge, East Godavari District, Kakinada which reversed the judgment and decree dated 13.11.2006 passed in OS No.31 of 1990 on the file of Senior Civil Judge, Peddapuram, East Godavari District. Appeal coming on for hearing and upon perusing the Memorandum of Appeal, the Judgment and Decree of the Trial Court and the material evidence on record and upon hearing the arguments of Sri V Venkata Mayur, Advocate for the Appellant and of Sri K B Ramanna Dora, Advocate for Respondents. This Court doth judgment and decree as follows: 1. That the Second Appeal be and hereby is dismissed; 2. That each party do bear their own costs in the Second Appeal. Sd/- V DIWAKAR DEPUTY REGISTRAR 4ct& //TRUE COPY// OFFICER To 1. The IV Additional District Judge, Kakinada, East Godavari District. 2. The Civil Judge (Senior Division), Peddapuram, East Godavari District. 3. Two CD Copies TK sree 0 HIGH COURT DATED:04/08/2025 DECREE SA No.553of2015 a 0 9 SEP 2025 entSectioiix^.y^^ o;I ^co.' DISMISSING THE SECOND APPEAL A APHC010212822015 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI MONDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND TWENTY FIVE lio Ih... r , - ' • . ( V' i ’ i i ' ^ / 1} \ V PRESENT HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO SECOND APPEAL No.553 of 2015 Appeal under Section 100 of C.P.C, aggrieved by the judgment and decree dated 21.10.2009 passed in A.S.No.260 of 2006 on the file of IV Additional District Judge, East Godavari District, Kakinada which reversed the judgment and decree dated 13.11.2006 passed in OS No.31 of 1990 on the file of Senior Civil Judge, Peddapuram, East Godavari District. Between: Setti Chandra Rao, S/o. Kondala Rao, Aged 79 years, Occ: Agriculture, R/o.H.No.3-63, Velanka Village, Chillangi Post, Kirlampudi Mandal, East Godavari District, A.P. ...Appellant/ Respondent No.2/Defendant No.2 AND . 1. Setti Suryakantam, W/o Appa Rao, Aged 80 years, Occ; Housewife Velanka Village, East Godavari District. 2. Setti Veera Swamy, (Died as per LRs) 3. Setti Kamaraju, S/o Appa Rao, Aged 55 years, Occ: Cultivation, R/o Velanka Village, East Godavari District. R/o I 4. Makineedi Venkata Lakshmi, W/o Adinarayana, Aged 50 years, Occ: Housewife, Krishnapuram, Tondangi Mandal, East Godavari District. ...Respondents/ Appellants/Plaintiffs 5. Yelamanchili China Veerraju, W/o China Appa Rao, Aged 71 years, Occ: Housewife, R/o Velanka Village, East Godavari District. ...Respondent/ Respondent No.1/Defendant No.1 6. Smt. Polaratnam, W/o. Late Setti Veeraswamy, Aged about 55 years. Housewife, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 7. Setti Apparao, S/o. Setti Veeraswamy, Aged about 36 years, Occ: Private Service, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 8. Setti Nageswara Rao, S/o. Setti Veerasikamy, Aged about 34 years, Occ: Private Service, R/o. Velanka Village, Kirlampudi Mandal, East Godavari District. 9.' Adabala Surya Varalaxmi, W/o. Adabala Rambabu, Aged about 32 years. Housewife, Palem Village via Veeravaram, Kirlampudi Mandal, East Godavari District. (As per the Court Order dated 12-12-2024, Respondent Nos.6 to 9 brought on record as LRs of the deceased Respondent No.2, vide I.A.No.l of 2021 in S.A. No.553 of 2015) are ...Respondents lA NO: 2 OF 2015fSAMP 1511 OF 20151 Petition under Section 151 of CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in OS.No.31 of 1990 on the file of the Senior Civil Judge, Peddapuram, pending disposal of the SA. Counsel for the Appellant : Sri V Venkata Mayur Counsel for the Respondents: Sri K B Ramanna Dora The Court made the following Judgment: HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.553 of 2015 Judgment: This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 21.10.2009 in A.S.No.260 of 2006, on the file of learned IV Additional District Judge, East Godavari District, Kakinada, confirming the Judgment and decree, dated 13.11.2006 in O.S.No.31 of 1990, on the file of learned Senior Civil Judge, Peddapuram. 2. The appellant herein is the 2^^^ defendant, the respondents 1 to 4 herein are the plaintiffs 2 to 5 and the respondent herein is the 1 defendant in O.S.No.31 of 1990, on the file of learned Senior Civil Judge, Peddapuram. St During the pendency of the second appeal, the 2'^'^ respondent died and his legal representatives were brought on record as respondents 6 to 9. 3. The plaintiff initiated action in O.S.No.31 of 1990, on the file of learned Senior Civil Judge, Peddapuram, with a prayer for specific performance directing the defendants to execute the sale deed after receipt of balance of sale consideration as per the terms of agreement of sale in respect of plaint schedule property and deliver possession of the same to the plaintiffs and for costs of the suit. 4. The trial Court is partly decreed the suit in O.S.No.31 of 1990, on the file of learned Senior Civil Judge, Peddapuram. Felt aggrieved of the same, the plaintiffs in the above said suit filed A.S.No.260 of 2006, on the file of learned IV Additional District Judge, East Godavari District, Kakinada. The learned IV Additional District Judge, East Godavari District, Kakinada, allowed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved thereby, the 2'^'^ defendant in the suit approached this Court by way of second appeal. 2 VGKR, J. SA_553_2015 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.31 of 1990, is as follows: (a) The plaint schedule property was originally acquired by the mother defendant by way of a registered sale deed dated 05.08.1968 from one Gottumukkala Butchr Venkayamma and later she executed a Will on 25.05.1979 bequeathing it in her favour. Though in the document, the extent is shown as Ac. 1-90 cents covered by S.No.34/1, on ground it is Ac.2-00. The 1®* defendant for the family needs, to purchase other land at Velanka and also as , schedule land is not feasible for personal cultivation because of scarcity of water, she offered to sell it and the 1®* plaintiff agreed to purchase at the highest market price at Rs.25,000/- per acre since he got land adjacent to the schedule land on its south, agreement was executed by the 1 plaintiff on 19.12.1988 and received Rs.5,000/- towards earnest money. (b)lt is agreed between the parties that the 1®‘ plaintiff has to pay a further sum of Rs.20,000/- on or before 06.04.1989 and the 1®^ defendant shall execute and register a sale deed before the end of PALGUNA BAHULA AMAVASYA OF SUKLANAMA YEAR after receiving the balance sale consideration and then deliver possession , of the property. At the time of agreement, the 1®‘ defendant informed that the property is free from encumbrances and it is under her personal cultivation through Setti Suryachakram, son of Somaraju. (c) The 1®* plaintiff is ready to pay the balance of sale consideration and several times requested the 1®' defendant to receive the same. The 1®* defendant received Rs. 17,000/- on 15.04.1989 and Rs.765/- on St of the 1 An St defendant in favour of the # 3 VGKR, J. SA_553_2015 on the backside of the 31.05.1989 and made endorsements agreement. (d)The plaintiffs own land situated on the south of the schedule land and to cultivate it, there i due permission from the 1 schedule land at IS scarcity of water. Hence, after obtaining defendant, he dug a bore well in the one point. As it was failed, he dug another bore to a depth of 120 feet of 3 diameter and got fixed pump set S.No.1350 of 15 horse a Midland power with Submersible MM.R.65A/I. {e)The 2« defendant is also having land adjacent to the schedule land towards Its north and has knowledge of an agreement in favour of the 1=' plaintiff by the defendant. When the 1"' plaintiff applied for Bank), the 2'"'^ a loan with Polinadu Cooperative Society (Rural defendant filed an objection for grant of loan. The disputes between them. In the month of January, 1990, the 1=' plaintiff made ready with the entire balance of sale the 1®* defendant to get the land arose consideration and requested measured and receive the entire sale consideration by amVing it at the rate of Rs.25,000/- for the total extent available on land and execute the sale deed and deliver possession of it, but the 1« defendant dodged it on one or other ground. On enquiries, the 1 plaintiff came to know that the 1®' in possession of one Setti Surya Chakram defendant put the land i having borrowed an amount of Rs. 13,000/- to be enjoyed by said Surya Chakram in lieu of interest on the said borrowed amount, (f) When the 1®‘ defendant did not come forward for taking measurements of the land and execute a sale deed in terms of the agreement of sale, the 1>' plaintiff got issued a legal notice to the 1*' defendant suspecting a foul play by the defendants 1 collusion with each other, calling upon the 1" defendant to the land and execute and 2 in measure a sale deed, receive the balance of sale consideration and deliver possession of thejand. To that effect, the 4 VGKR, J. SA_553_2015 defendant gave a reply denying the agreement in favour of the 1 plaintiff and further alleged that one Mamillapalli Atchuta Ramayya took her thumb impressions on blank papers and with the help of ' said papers, an agreement in favour of the 1®' plaintiff was brought into existence, (g) During pendency of the suit, the 1®' plaintiff died on 06.08.1995 leaving the plaintiffs 2 to 5 as her legal representatives, as such, they came on record to prosecute the suit. St St defendant filed written statement before the trial Court denying the material averments in the plaint including the sale agreement in favour of the plaintiff and receiving of any amount towards advance of sale consideration and contended as follows: 7. The 1 The 1®‘ plaintiff and the 2"'^ defendant are close relatives with each other and she is no way concerned with the disputes between them, possession of the schedule land with Surya Chakram is known to one and all in the village as he was enjoying it in lieu of interest for the amount borrowed by the 1®‘ defendant. One Mamillapalli Atchutaramayya obtained the thumb impressions of the 1®^ defendant and her title deeds with a promise to arrange loan, is also known to one and all in the village. The schedule land is always in the possession of third parties for the debts contracted by the mother of the 1®' defendant during her lifetime. The 1®* defendant after the death of her mother, intended to sell Ac. 1.00 of land from out of the schedule land for discharge of the debt and retain the remaining land and to dig a bore well for personal cultivation. She never intended to sell the entire extent of schedule land. The present suit is filed with an ulterior motive to grab the land of the 1 defendant. The St nd 8. The 2 defendant filed written statement contending that the 1 defendant never intended to sell the entire extent of the schedule land. She St intended to sell only one acre for discharge of debts. For executing an 5 VGKR, J. SA_553_2015 agreement in favour of the 2'^'^ defendant, the defendant waited till the expiry of time given to the person in possession of plaint schedule for discharge of debt and obtain possession of it. After expiry of time, she repaid the debt, obtained delivery of possession of land and delivered him one acre of land after receiving the full consideration for executing the sale deed in his favour. Everyone in the village knows about the sale by the 1®* defendant in his favour for Rs.1-00. There is no need for the 2^"^ defendant to collude with the 1®* defendant and to have grudge against the 1®* plaintiff. He is not aware of any notice by the 1®* plaintiff to the 1®* defendant. The 2'^'^ defendant is a bona fide purchaser for valuable consideration and enjoying Ac. 1-00 of land to the knowledge of one and all in the village. When the 1®* plaintiff attempting to interfere with his peaceful possession and enjoyment of land after his purchase, he filed a suit before the District Munsif Court, Prathipadu and obtained injunction orders. As he is the bona fide purchaser of land to an extent of Ac.1-00 from and out of the schedule land, the plaintiff cannot maintain the suit for the said extent. 9. On the basis of above pleadings, the learned trial Judge, framed the following issues for trial: (1) Whether the suit agreement of sale dated 19.12.1988 by the 1 St defendant in favour of the plaintiff is true, valid and binding on the defendants? (2) Whether the payment of advance and the subsequent payments to the 1®* defendant by the plaintiff from out of the sale consideration pleaded by the plaintiff are true? (3) Whether the agreement of sale dated 11.12.1989 and the sale deed dated 30.4.1990 obtained by the 2'^'' defendant from the 1®‘ defendant for Rs.1-00 of land out of the suit schedule land is for valuable consideration and without notice of the suit agreement of sale in favour of plaintiff? (4) Whether the plaintiff always ready and willing to perform his part of the contract? (5) Whether the plaintiff is entitled for specific performance of the suit agreement of sale? (6) To what relief? ,, 6 S' VGKR, J. SA_553 2015 10. During the course of trial in the trial Court, on behalf of the plaintiffs, P.W.1 to P.W.5 were examined and Exs.A.1 to A.9, Exs.X.1 to X.26 and Exs.C.1 to C.3 were marked. On behalf of the defendants, D.W.1 to D.W.6 were examined and Exs.B.1 to B. 13 were marked. 11. The learned Senior Civil Judge, Peddapuram, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit in part. Felt aggrieved thereby, the plaintiffs filed the appeal suit in A.S.No.260 of 2006, on the file of learned IV Additional District Judge, East Godavari District, Kakinada, wherein, the following points came up for consideration: 1) Whether Ex.AI agreement of sale is true, valid, supported by consideration and binding on the defendants? 2) Whether the 2"'^ defendant is a bona fide purchaser of one acre of land covered by Ex.B.5 sale deed? 3) Whether the plaintiffs are entitled for specific performance of Ex.A.1 agreement of sale? 4) Whether the plaintiffs are entitled for injunction prayed for? 5) Whether the 1®‘ defendant is entitled for injunction prayed for? 6) Whether the findings of the trial Court in its judgment under appeal suffers with infirmities and needs interference in the appeal? 7) To what relief? 12. The learned IV Additional District Judge, East Godavari District, Kakinada i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendants and allowed the appeal filed by the plaintiffs. Felt aggrieved of the same, the 2"^^ defendant in O.S.No.31 of 1990 filed the present second appeal before this Court. 7 % VGKR, J, SA 553 2015 13. On hearing both side counsels at the time of admission of the appeal, on 06.01.2016, the Composite High Court framed the following substantial questions of law: (1) Whether there any legal embargo to mention about agreement of sale in the registered sale deed? (2) Whether specific performance of agreement of sale In respect of entire suit schedule property covered under Ex.A.1 can be granted to the plaintiffs when appellant herein is a prior agreement holder? (3) Whether suit for specific performance can be granted to the plaintiff to the entire suit schedule property when defendant No.1 is owner of Ac.1.00 of land after partition Ac.1.00 in favour of defendant No.2? 14. Heard Sri V.Venkata Mayur, learned counsel for the appellant through virtual mode and Sri K.B.Ramanna Dora, learned counsel for the respondents 1 to 4 and 6 to 9. 15. In a second appeal under Section 100 of CPC the High Court cannot substantiate its own opinion for that of First Appellate Court unless the Court finds that the conclusions drawn by both the Courts being, (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to the law as pronounced by the Apex Court or (iii) based inadmissible or no evidence. are erroneous on 16. The jurisdiction of the High Court in second appeal under Section 100 of CPC is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by both the Courts below and if the First Appellate Court has exercises in its discretion in a judicial manner, its decision 8 VGKR, J. SA_553_2015 an error either of law or of procedure cannot be recorded as suffering from requiring interference in a second appeal. 17. The undisputed facts are the mother of the 1*' defendant purchased Ac.1.90 cents of land in S.No.34/1 from Gottumukkala Butchi Venkayamma under a registered sale deed dated 05.08.1968. During her lifetime, she said Will, the 1®* since testatrix under the said registered Will defendant died much prior to the executed a Will dated 25.05.1979 and by virtue of the defendant is the absolute owner died. It is not in dispute that mother of 1 alleged suit transaction. 18. The specific case of the 1=' plaintiff is that the 1^' defendant agreed to sell away the suit schedule property to the 1 Rs.25,000/- plaintiff for an amount of per acre and executed an agreement of sale dated 19.12.1988 and received advance of sale consideration of Rs.5,000/- and later the 1®* an amount of Rs.17,000/- on 15.04.1989 and also received an amount of Rs.765/- on 31.05.1989 and obtained endorsements the reversal of Ex.A.1 under Exs.A.2 and A.3 endorsements, proves the same. defendant received on Exs.A.1 to A.3 19. In order to establish the case of the plaintiffs, the plaintiffs relied on the evidence of P.Ws.1 to 5 and Exs.A.1 to A.9. agreement of sale is denied by the 1®^ defendant. The execution of Ex.A.1- In order to prove Ex.A.1- agreement of sale, the plaintiffs relied on the evidence of P.W.2 P.W.2 IS one of the attestor in Ex.A.1 agreement of sale. The evidence of P.W.2 goes to show that Ex.A.1 and P.W.3. was executed by the 1®' defendant in the presence of her two sons and two attestors i.e. P.W.2 and another attestor. Admittedly, the husband of the 1®* defendant is examined as D.W.2 and son of the 1®* defendant is examined as D.W.3. D.W.2 admitted that they have disputes with the plaintiffs. D.W.3 also admitted that he has P.W.2. P.W.3 is the scribe of Ex.A.1 no no disputes with -agreement of sale. As per his evidence the 1®* defendant offered to sell the schedule land and the 1^^ plaintiff agreed 9 VGKR, J. SA 553 2015 to purchase it and in bargaining of price, it was settled for Rs.25,000/- per acre and in pursuance of it, an agreement of sale under Ex.A.1 was executed in his presence, the 1®* defendant, her husband her other two sons and attestors. The presence of P.W.2 at the time of Ex.A.1 transaction is spoken by P.W.3 in his evidence itself. Furthermore, the recitals in Ex.A.1-agreement of sale goes to show that the 1®^ defendant received an amount of Rs.5,000/- on the date of agreement and the 1®* defendant received an amount of Rs. 17,000/- on 15.04.1989 and Rs.765/- on 31.05.1989 towards part of sale consideration. The evidence of P.W.2 goes to show that he was physically present when the 1®* plaintiff paid an amount of Rs. 17,000/- to the 1®* defendant under Ex.A.2 endorsement and P.W.3 is the scribe of Ex.A.2 endorsement. The execution of Ex.A.1 and also part payment endorsements under Exs.A.2 and A.3 are duly proved by the plaintiffs by examining the attestor and scribe of Ex.A.1 as P.W.2 and P.W.3. It is not at all the specific case of the 1®* defendant and her sons and her husband that their family is having enmity with P.W.2 and P.W.3, due to that P.W.2 and P.W.3 deposed falsehood against the 1®^ defendant. The husband of 1 defendant - D.W.2 categorically admitted in his evidence in cross-examination itself that they have no disputes with the plaintiffs. The 1®^ and 2'^'^ defendants specifically denied the execution of agreement of sale under Ex.A.1 and part payment endorsements under Exs.A.2 and A.3. As noticed supra, the execution of Ex.A.1 is duly proved by the plaintiffs by examining one of the attestor in Ex.A.1-agreement of sale as P.W.2 and also scribe as P.W.3. As noticed supra, the sons of 1®^ defendant are also the attestors to Ex.A.1-agreement of sale and the 1®‘ defendant affixed her thumb mark as an executant and her two sons affixed their thumb marks as attestors apart from other attestors in Ex.A.1-agreement of sale. Since the 1®^ defendant has specifically denied about execution of Ex.A.1- agreement of sale and also the thumb mark on Ex.A.1-agreement of sale, the plaintiffs have taken pains and filed a petition to send the Ex.A.1-agreement of sale along with the disputed thumb marks of the 1®' defendant and her son- 20. 10 VGKR, J. SA_553_2015 D.W.3, to the Finger Print Expert and the plaintiffs also examined the finger print expert as P.W.5. The evidence of P.W.5 coupled with finger print expert Report, categorically discloses that the thumb marks on Ex.A.1 contains the thumb marks of the 1®* defendant and her son Yelamanchili Adinarayana- D.W.3. P.W.5 is cross-examined by the learned counsel for the defendants. In cross-examination, the evidence of P.W.5 is not shattered on the material aspects of the case. No doubt, the opinion of the finger print expert is not a conclusive proof, but, it has to be read along with the other evidence on record. The evidence of P.W.5 supports the case of plaintiffs to show that the Ex.A.1 agreement is genuine one. 21. As noticed supra, the evidence of P.W.2 and P.W.3 itself proves about execution of Ex.A.1-agreement of sale and also endorsements under Exs.A.2 and A.3 and as noticed supra, the plaintiffs also taken pains to send the document to the finger print expert and report of finger print expert and evidence of P.W.5 is also clinchingly establishes that Ex.A.1-agreement of sale is a genuine one. For the aforesaid reasons, I am of the considered view that Ex.A.1-agreement of sale is proved and genuine one. The learned trial Judge as well as First Appellate Judge, on appreciation of entire evidence on record, came to conclusion that Ex.A.1 is proved. Therefore, there is no need to interfere with the said findings given by both the Courts. 22. Learned counsel for the appellant would contend that the specific performance of the agreement of sale in respect of suit schedule property covered under Ex.A.1 cannot be granted to the plaintiffs, because the appellant herein is the prior agreement holder. 23. The contention of the appellant is that he obtained unregistered agreement of sale in respect of Ac. 1-00 land from out of the total extent of the land in Ex.A.1 alleged agreement, on 11.12.1988 under Ex.B.1 from the 1®* defendant. The plaintiffs specifically denied the Ex.B.1 agreement of sale and the pjaintiffscontend that p ':H 11 VGKR, J. SA 553 2015 Ex.B1 is a fabricated document and the same is brought into existence with anti-date to defeat the rights of Ex.A.1 agreement holder. In Ex.B.1, it was alleged to have been averred that the 2^*^ defendant agreed to purchase Ac. 1.00 land for Rs.20,000/- on 11.12.1988 and the 2"^ defendant paid an advance amount of Rs.5,000/- and the remaining balance of Rs. 15,000/- will be paid within two years and to obtain a regular registered sale deed. The stamp papers under the alleged Ex.B.1 agreement which said to have been purchased on 31.01.1988. The 2'^'^ defendant i.e. D.W.4 deposed in his evidence that in the presence of one Atchutha Ramaiah, the bargain was settled at Rs.50,000/- per acre and on 11.12.1988, he agreed to purchase the land for Rs.50,000/- per acre and the agreement of sale was executed in his favour by the 1®' defendant on 11.12.1988. The stamp papers used for preparing alleged Ex.B.1 agreement are said to have been purchased on 31.01.1988 by the 2"^^ defendant from the stamp vendor. It was not specifically pleaded either by the 1®‘ defendant or by the 2'"'^ defendant that they agreed to enter into the contract on 31.01.1988 i.e. about more than ten months prior to obtaining Ex.B.1 agreement of sale dated 11.12.1988. D.W.4 deposed in his evidence itself that he did not state either in his pleadings or in his evidence given in other suits that Ac. 1-00 land was purchased by him for Rs.50,000/- and on the date of execution of agreement of sale, he made a payrnent of Rs.5,000/- and the rest of the sale consideration of Rs.45,000/- has to be paid on the date of registration of the sale deed. He clearly admits that the price of Rs.50,000/- is not at all mentioned either in the agreement of sale or in the sale deed. He further admits that 15 days after the registration of sale deed, the 1®* defendant has taken the possession of the suit schedule property from the mortgage, till then, the 1®^ defendant was not in possession of the suit schedule property. Another admission made by him is that by the date of execution of sale deed under Ex.B.5 in his favour, possession of the land purchased by him was not at all delivered. 12 VGKR, J. SA 553 2015 The recitals in Ex.B.1 agreement of sale show that the said alleged agreement was executed on 11.12.1988 and the registered sale deed was executed by the 1®‘ defendant in favour of the 2^^ defendant on 30.04.1990. It was admitted by the 1®‘ defendant/vendor in her evidence in cross-examination itself that she cannot say how many years after the death of her mother, she agreed to sell away Ac. 1-00 land to the 2"'^ defendant and she executed an agreement of sale in favour of the 2"^^ defendant for sale of Ac.1-00 land and four months thereafter, she executed a sale deed in his favour. As noticed supra, the date of alleged Ex.B.1 agreement of sale is 11.12.1988 and the date of registered sale deed said to have been executed by D.W.1/1®* defendant in favour of the 2"^^ defendant is on 30.04.1990. As noticed supra, the stamp papers under Ex.B.1 alleged agreementof sale were alleged to have been purchased on 31.01.1988 i.e. more than ten months prior to the execution of alleged agreement of sale. Therefore, there are suspicious circumstances surrounded the Ex.B.1 alleged agreement of sale. 24. 25. The plaintiffs have specifically denied Ex.B.1 agreement of sale and they contend that Ex.B.1 is a fabricated document with anti-date. Therefore, the initial burden lies on the appellant / 2*^^ defendant to prove the alleged Ex.B.1 agreement of sale. According to the appellant, one Gande Kameswararao and Gande Kondarao were present at the time of execution of alleged agreement and they are the attestors to the alleged Ex.B.1 agreement and one Sathibabu of Prathipadu is the scribe of Ex.B.1. But the fact remains that the agreement holder of alleged Ex.B.1, fails to examine either the attestors or the scribe of alleged Ex.B.1. For the reasons best known to the appellant, he remained silent and failed to examine the two attestors and scribe of Ex.B.1. The specific case of the appellant is that the specific perforrnance of agreement of sale under Ex.A.1 in respect of entire schedule property covered under Ex.A.1 cannot be granted to the plaintiffs, because the appellant herem ]s a prior agreement holder under Ex.B.1. In such a case, the 2^^^^ defendant has to prove the recitals in Ex.B.1 agreement of sale and the 13 VGKR, J. SA_553_2015 burden primarily cast upon the 2^^^ defendant / alleged agreement holder under Ex.B.1 to prove the Ex.B.1 agreement of sale, but he fails to do so. As noticed supra, the plaintiffs have discharged their initial burden by examining one of the attestor and scribe of Ex.A.1 as P.W.2 and P.W.3. relevant to say that the 1 specifically stated in their evidence that they are not having any disputes with the plaintiffs and they are not having any disputes with P.W.2 and P.W.3. It is also defendant, her husband and her two sons St 26. It is evident that the alleged Ex.A.1 agreement of sale is sent to finger print expert through Court and the expert gave opinion that the Ex.A.1 agreement is genuine one. The fact remains that the 2^^ defendant has not taken any steps to prove the Ex.B.1 agreement of sale. More over, though there is a reference of agreement in Ex.B.5 sale deed, there is no reference of the date of Ex.B.1 agreement of sale, specifically pleaded that he obtained agreement under Ex.B.1 on 11.12.1988 and he obtained a regular registered sale deed from the 1®* defendant 30.04.1990. As per the own admissions of the 1®‘ defendant i.e. D.W.1 after execution of Ex.B.1 agreement of sale for Ac. 1-00 land in favour of the 2""^ defendant, four months thereafter, she executed a sale deed in favour of the defendant. Furthermore, the 2'"'^ defendant on 2nd Therefore, there are several suspicious circumstances surrounded the alleged Ex.B.1 agreement of sale. The said suspicious circumstances surrounded the Ex.B.1 alleged agreement of sale are not yet removed by the alleged Ex.B.1 agreement holder / appellant. It is the specific case of the 1®* plaintiff that the 2 colluded with the 1®* defendant and brought into existence Ex.B.1 and Ex.B.5 documents. But the fact remains that the 2"'^ defendant failed to prove the Ex.B.1 agreement of sale and failed to prove that Ex.B.1 is a genuine one. As stated supra, the vendor herself admits in her evidence in cross-examination that after execution of agreement of sale in favour of the 2"^ defendant, for Ac. 1-00 land, four months thereafter, she executed a registered sale deed in nd 27. defendant 14 VGKR, J. SA 553 2015 favour of the 2'^^ defendant. As stated supra, the date of alleged agreement of sale under Ex.B.1 is 11.12.1988 and the date of alleged sale deed under Ex.B.5 is 30.04.1990. The said discrepancy is not at all explained either by the 1®^'defendant or the 2^^ defendant. For the aforesaid reasons, Ex.B.1 alleged agreement of sale is not at all proved by the 2'"'^ defendant. Therefore, I am unable to accept the contention of learned counsel for the appellant that the appellant herein is a prior agreement holder than that of Ex.A.1 agreement of sale. Learned counsel for the appellant would contend that there is no legal embargo to mention in the registered sale deed about the earlier agreement. Here, from the beginning itself, the plaintiffs contended that to defeat the rights of Ex.A.1 agreement holder, Exs.B.1 and B.5 are brought into existence and therefore, the initial burden casts upon the 2"'^ defendant / Ex.B.1 agreement holder to prove the same. But the 2'^'^ defendant remained silent and for the reasons best known to him, he failed to prove the same. 28. Learned counsel for the appellant would contend that the specific performance for total extent of suit schedule property for Ac.2-00 cannot be granted to the plaintiffs, when the 1®‘ defendant is the owner of Ac.1-00 only after alienation of Ac.1-00 in favour of the 2"^ defendant under Ex.B.5 registered sale deed dated 30.04.1990, and the 2'^'^ defendant is the owner of the said Ac.1-00 land. As stated supra, from the beginning itself, the plaintiffs severely contended that to defeat the rights of Ex.A.1 agreement holder / 1 plaintiff, Ex.B.1 and Ex.B.5 are brought into existence. 29. St The recitals in Ex.B.5 registered sale deed goes to show that the sale consideration under the said document is Rs.25,000/- only. Whereas, the 2"^ defendant contended that though the sale consideration is Rs.50,000/-, the market value of Rs.25,000/- is only mentioned in the document. In fact, either the 2^^ defendant or the 1®* defendant failed to prove that by the date of Ex.B.5 sale deed, the market value of the property for Ac.1-00 is around Rs.25,000/- 30. 15 VGKR, J. SA 553 2015 only. Furthermore, Ex.B.5 recitals goes to show that the possession was delivered to the 2''^ defendant by the 1®* defendant under Ex.B.5 sale deed. The fact remains that by the date of Ex.B.5 registered sale deed, a mortgage is pending against the Ex.B.5 property. It was admitted by both the parties i.e. 1®* defendant and 2"^^ defendant that by the date of Ex.B.5 sale deed, a mortgage is pending against the said property. In such a case, no prudent men will purchase the property of Ac. 1-00 under Ex.B.5, by that date, a registered mortgage is pending. 31. It is the admitted case of both the defendants 1 and 2 that the property is not in the possession of vendor / 1®' defendant by the date of alleged Ex.B.5 sale deed. Moreover, the purchaser i.e. 2'^'^ defendant / D.W.4 admits in his evidence in cross-examination that, on the date of execution of agreement of sale, he made part payment of Rs.5,000/- and the rest of the sale consideration is Rs.45,000/- on the date of registration of sale deed. He further admits that he did not state either in his pleadings or in his evidence given in other suits that Ac. 1-00 land was purchased by him for Rs.50,000/-. Furthermore, there was a clear admission made by the 2"^^ defendant in his evidence in cross-examination itself that 15 days after the registration of sale deed, the 1®^ defendant took possession of the schedule property from the mortgagor. Therefore, the fact remains that even by the date of Ex.B.5 sale deed, the vendor under Ex.B.5 is not in possession of Ex.B.5 sale deed property. In fact, there is no recital in Ex.B.5 sale deed that after realizing the mortgage debt, possession in the land will be delivered to the 2'^^ defendant. The same is unequivocally admitted by the 2"^^ defendant in his evidence itself. Therefore, it is quite clear that mortgage is pending on the date of Ex.B.5 sale deed. The same is not at all redeemed. As per the evidence of D.W.6, mortgage debt was discharged on 16.05.1990. D.W.1 / 1®' defendant i.e. vendor of the alleged Ex.B.5 sale deed, admits that the possession was not delivered under Ex.B.5 sale deed to the 2"^ defendant. 16 VGKR, J. SA 553 2015 32. Admittedly, by the date of Ex.B.5 alleged registered sale deed, the registered mortgage is in force and it was not redeemed and the vendor under Ex.B.5 is also not in possession of the plaint schedule property. The same is admitted by the 1®* defendant and also the 2"'^ defendant i.e. both the vendor and vendee admitted the same. Therefore, without redeeming the registered mortgage debt, no prudent man would obtain registered sale deed for the self same property. Moreover, there is no mention about the alleged registered mortgage to be discharged in Ex.B.5 sale deed. Moreover, there is no recital in Ex.B.5 sale deed that by that date the mortgage is pending and after discharge of the mortgage debt only, the property will be delivered. As stated supra, Ex.B.1 is not at all proved by the defendant. Here, the appellant is claiming rights under Ex.B.5 sale deed after execution of Ex.A.1 agreement of sale in favour of the 1®' plaintiff by the vendor / 1®^ defendant. Therefore, the 2""' defendant, who is claiming under Ex.B.5 sale 33. deed executed after execution of suit agreement Ex.A.1 can be subject to a The suit agreement can be enforced decree of specific performance, specifically against the defendant. The 2"^^ defendant has to prove that he is the bonafide purchaser without the notice of original contract under Ex.A.1, but he failed to prove that he entered into Ex.B.5 sale deed with the 1®* defendant in a good faith and without notice of the suit agreement under Ex.A.1. In the case on hand, on having knowledge of Ex.A.1 agreement defendant alienated 34. St transaction, Exs.A.2 and A.3 endorsements, the 1 Ac. 1.00 land from out of total Ac.2-00 property in favour of the 2"'’ defendant, defendant alleged to have been alienated Ac. 1-00 land under Ex.B.5 in The 1 favour of the 2"^ defendant, approached the Court with unclean hands with a specific contention that Exs.A.1 to A.3 are fabricated one. As noticed supra, Exs.A.1 to A.3 are proved in accordance with law. equitable discretion to grant relief of specific performance or not to grant the relief of the specific performance depend upon the conducLofthe^parties. The It is well settled that 17 VGKR, J. SA 553 2015 necessary ingredients have to be proved and established by the plaintiffs. So that, the discretion would be exercised judiciously in favour of the plaintiffs. At the same time, if the 2 suppressed the material facts and evidence and mislead the Court, such discretion should not be exercised by refusing to grant a relief of specific performance. nd defendant does not come with clean hands and Learned counsel for the respondents / plaintiffs would contend that the executing Court executed a registered sale deed on 04.06.2015 for total Ac.2-00 of land and it was registered on 05.06.2015 in the Sub-Registrar Office. He also represented that the plaintiffs filed a petition to vacate the interim order dated 21.08.2015 passed in this second appeal and in the affidavit of the 2'’'^ plaintiff, it was narrated that the executing Court executed a sale deed for Ac.2-00 of land in favour of the plaintiffs on 05.06.2015. As seen from the recitals in the affidavit of the 2"'^ plaintiff, it was reiterated that subsequent to passing of decree by the First Appellate Court, since the 1®* defendant failed to get the land measured and execute a sale deed in favour of the plaintiffs, the plaintiffs filed an Execution Petition in E.P.No.22 of 2010 on the file of learned Senior Civil Judge, Peddapuram for appointment of an Advocate-commissioner to measure the decree schedule property with the assistance of qualified Surveyor and to file a report as well as for execution of sale deed. In the affidavit of the 2*^^ plaintiff, it was further reiterated that the Advocate-commissioner was appointed and he measured the suit schedule property and found it is Ac.2-00 and the trial Court executed a sale deed on 04.06.2015 for an extent of Ac.2-00 of land, which is found after measuring the land by the Advocate-commissioner, plaintiff further reveals that they filed a petition for delivery of the property, at the time of delivery of property by the Field Assistant to the plaintiffs, an objection was raised by the 2^^^^ defendant / appellant herein before the Field Assistant for delivery of the property. As stated supra, in view of clause (b) of Section 19 of the Specific Relief Act, the appellant / 2^^^ defendant, who is 35. nd Further, the affidavit of the 2 ; VGKR. J. SA_553_2015 claiming the title under sale deed under Ex.B.5, which is said to have been executed after execution of Ex.A.1 suit agreement of sale, can be subject to a decree-of specific performance and the 2"" defendant failed to prove that he is the bonafide purchaser without the notice of earlier original contract under Ex.A.1, he purchased the property under Ex.B.5. For the aforesaid reasons, I am of the considered view on appreciation of entire evidence on record in a proper manner, the First Appellate Judge allowed the First Appeal filed by plaintiffs and granted decree of specific performance of agreement of sale in respect of Ac.2-00 of land. 36. This Court while exercising the power under Section 100 of CPC, must confine to the substantial questions of law involved in the second appeal and this Court cannot re-appreciate the evidence on record and interfere with the finding given by the learned First Appellate Judge, whereby, the First Appellate Judge exercised judiciously. Further, this Court cannot substantiate its own opinion unless the findings of the First Appellate Court are manifestly perverse and contrary to the evidence on record. I am of the considered view that on appreciating the entire evidence on record, the learned First Appellate Judge rightly came to conclusion that the plaintiffs are entitled the relief of specific performance of agreement of sale in respect of total property of Ac.2.00 in the suit proceedings. Therefore, there are no merits in the second appeal and the same is liable to be dismissed. In the result, the Second Appeal is dismissed. Considering the facts and circumstances of the case, each party do bear their own costs in the Second Appeal. 37. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. — Sd/- V DIWAKAR DEPUTY REGISTRAR // r- //TRUE COPY// SECTION OFFICER To 1. The IV Additional District Judge, Kakinada, East Godavari District, (with records if any) 2. The Civil Judge (Senior Division), Peddapuram, East Godavari District. 3. One CC to Sri V Venkata Mayur, Advocate [OPUC] 4. One CC to Sri K B Ramanna Dora, Advocate [OPUC] 5. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records) 6. Two CD Copies TK sree HIGH COURT DATED:04/08/2025 JUDGMENT + DECREE SA No.553 of 2015 gf 0 9 SEP 2025 )? Co rrentSectlonXw DISMISSING THE SECOND APPEAL