caselaws
Supreme Court of India
Lakshmi Sreenivasa … vs Puvvada Rama Rao (D) By Lrs . on 31 July, 2018Author: A Khanwilkar
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6620 OF 2008
Lakshmi Sreenivasa Cooperative Building
Society …..Appellant
:Versus:
Puvvada Rama (Dead) by L.Rs. and Ors. ….Respondents
WITH
CIVIL APPEAL NO. 6625 OF 2008
JUDGMENT
A.M. Khanwilkar, J.
1. These appeals arise out two separate suits filed for
specific performance of agreements of sale in respect of land
admeasuring Ac. 7.86 cents (3.18 hectares) in Survey
Signature Not Verified
No.59/2, situated in Kundavari Khandrika Village within the
Digitally signed by
SATISH KUMAR YADAV
Date: 2018.07.31
15:15:36 IST
Sub Registry of Vijayawada.
Reason:
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2. The original respondent No.6, namely, Allu
Appalanarayana, had filed a suit for specific performance
before the Court of Subordinate Judge, Vijayawada, being
Original Suit No.99/1981 for specific performance of the
agreement dated 22nd November, 1979 executed in his favour
by Puvvada Chandrashekhara Rao and Puvvada Siva Prasad,
which was dismissed by the Trial Court on 20th October, 1997.
Civil Appeal No.6625 of 2008 emanates from the said
proceedings.
3. The appellant Society (appellant in both the appeals
before this Court) had also filed a suit in respect of the self-
same land for specific performance of the agreement of sale
dated 16th October, 1981 read with the earlier agreement
dated 30th June, 1977. Even this suit filed before the
Subordinate Judge at Vijayawada, being O.S. No.351 of 1982
was dismissed by the Trial Court by common judgment dated
20th October, 1997. Civil Appeal No.6620 of 2008 arises from
the said proceedings.
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4. The legal representatives of original respondent No.6
preferred a first appeal before the High Court of Judicature,
Andhra Pradesh at Hyderabad, being First Appeal No.1426 of
1997 against the dismissal of O.S. No.99/1981. Similarly, the
appellant Society preferred First Appeal No.1492/1997 before
the High Court of Judicature, Andhra Pradesh at Hyderabad,
against dismissal of its suit, being O.S. No.351/1982.
5. The appeal preferred by the heirs and legal
representatives of Allu Appalanarayana, however, was
disposed of on 9th March, 2006 in view of the submissions
made by the counsel for the appellant therein that respondent
Nos.1 & 2/defendant Nos.1 & 2, Puvvada Chandrashekhara
Rao and Puvvada Siva Prasad, respectively, had already
executed a sale deed in respect of the suit property in their
favour and, therefore, no further order was necessary in the
pending appeal. The High Court disposed of the said appeal
on that basis. Against that decision, as mentioned above, Civil
Appeal No.6625 of 2008 has been filed by the appellant
Society. It is doubtful whether this appeal preferred by the
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appellant against the decision of the High Court dated 9th
March, 2006 in First Appeal No.1426/1997 can be taken
forward. We shall elaborate on this a little later.
6. The real controversy that needs to be addressed is in
reference to the suit filed by the appellant Society, being O.S.
No.351/1982 for specific performance of the contract of sale
dated 16th October, 1981 read with the earlier contract dated
30th June, 1977, directing defendant Nos.1 to 5 (owners of the
suit property), who are respondent Nos.1 to 5 in Civil Appeal
No.6620/2008, to register a proper sale deed in favour of the
appellant Society on receiving the balance of sale
consideration at the time of registration or, in the alternative,
directing execution and registration of such sale deed by the
Court at their expense, and for permanent injunction
restraining the 6th defendant (respondent Nos.6a. to 6g. – legal
representatives) from interfering with the suit property and
plaintiff’s (appellant’s) possession and enjoyment thereof in
any way. The defendants contested the said suit and denied
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having executed the suit agreements dated 30th June 1977
and 16th October, 1981.
7. On the basis of the pleadings, the Trial Court framed
relevant issues and upon considering the oral and
documentary evidence produced by the appellant/plaintiff,
answered the material issues against the appellant/plaintiff.
The Trial Court opined that the appellant/plaintiff had failed
to prove the execution of the suit agreements. Similarly, the
appellant/plaintiff had failed to prove that earnest money
was paid to the owners of the land at the time of execution of
the suit agreements or otherwise. Even on the factum of
possession, as claimed by the appellant/plaintiff, the Trial
Court opined that the appellant/plaintiff had failed to prove
delivery of possession of the suit property to it by the owners
upon execution of the suit agreement dated 30th June, 1977.
The Trial Court further opined that the alleged suit
agreements could not have been executed in view of the bar
contained in the Urban Land Ceiling Act and even for that
reason, the same were not valid. Having answered the
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material issues against the appellant/plaintiff, the suit filed by
the appellant being O.S. No.351/1982, was eventually
dismissed with costs. Against the said decision, the appellant
preferred A.S. No.1492/1997 before the High Court of
Judicature, Andhra Pradesh at Hyderabad. The High Court
was pleased to uphold the finding of fact recorded by the Trial
Court against the appellant/plaintiff on the material issues.
In that sense, both the courts have concurrently opined that
the appellant/plaintiff failed to prove execution of the suit
agreements dated 30th June, 1977 and 16th October, 1981 or
of having paid earnest money in furtherance of those
agreements and also being put in possession of the suit
property, as claimed. At the same time, the High Court
departed from the finding recorded by the Trial Court with
regard to the issue as to whether defendant No.1 was a person
of unsound mind. The High Court found that there was
sufficient evidence to accept the said plea urged by defendant
No.1. The High Court, therefore, dismissed the appeal
preferred by the appellant Society and confirmed the order of
dismissal of suit passed by the Trial Court.
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8. The appellant has assailed the dismissal of its suit and
appeal by the High Court by way of Special Leave to Appeal
(Civil) No.16661 of 2006, which has been converted into Civil
Appeal No.6620 of 2008. The thrust of the challenge is that
the Trial Court as well as the High Court committed manifest
error in analysing and appreciating the evidence on record in
respect of material issues regarding execution of suit
agreements, payment of earnest money to the owners at the
time of execution thereof and including the factum of
appellant/plaintiff having been put in possession of the suit
property. It is urged that the crucial aspect as to the steps
taken by the appellant for and on behalf of the owners for
converting the land user and seeking permission of the
appropriate authority for transfer of the land in favour of the
appellant Society, has been overlooked. Those circumstances
would reinforce the execution of the suit agreements in favour
of the appellant. The appellant has also assailed the finding
reached by the High Court on the factum of defendant No.1
being of unsound mind. It is urged that adverse inference
8
ought to have been drawn under Section 114 of the Indian
Evidence Act, as defendant No.1 was not examined. The
appellant would further contend that it was always ready and
willing to perform its part of the contract and for which reason
the Court ought to have decreed the suit filed by the
appellant. It is contended that the appellant Society has acted
upon the suit agreements and has made substantial
investment on the suit property because it was put in
possession thereof. The equities are in favour of the appellant
for which reason the Court should lean in favour of granting
decree of specific performance, as prayed.
9. The respondents, on the other hand, would contend that
the Court should be loath in interfering with the concurrent
findings of fact on material issues recorded by the two Courts
against the appellant/plaintiff. Significantly, the Courts have
held that the appellant failed to prove execution of the suit
agreements. On that finding, the question of considering any
other matter to further the relief of specific performance,
would be an exercise in futility. Besides, both the Courts have
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held that there was express prohibition for execution of suit
agreements under the Urban Land Ceiling Act. The
respondents submit that the Trial Court has rightly dismissed
the suit filed by the appellant/plaintiff and, for the same
reason, the High Court is justified in dismissing the first
appeal preferred by the appellant. Resultantly, the present
appeal preferred against the concurrent decisions ought to be
dismissed.
10. As regards the companion Civil Appeal No.6625 of 2008,
it is urged that the same is completely ill-advised inasmuch as
it arises out of the suit instituted by the original respondent
No.1 (respondent Nos.1a. to 1g. – legal representatives) for
specific performance of agreement in his favour dated 22nd
November, 1979. That suit came to be dismissed by the
common judgment and order dated 20th October, 1997 passed
by the Trial Court, against which respondent Nos.1a. to 1g.
had filed First Appeal No.1426 of 1997. That appeal was not
pursued any further in view of the subsequent developments.
It necessarily follows that there was no adverse decree or for
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that matter, any finding recorded against the appellant herein
(defendant in the said suit) to which the appellant can take
exception, much less by way of special leave petition. The fact
that during the pendency of the first appeal, a registered sale
deed was executed in favour of the appellant in First Appeal
No.1426/1997 cannot be the basis to maintain an appeal
under Article 136 of the Constitution. Hence, such appeal is
devoid of merits.
11. We have heard Mr. Mohan Parasaran, learned senior
counsel appearing on behalf of the appellant Society and Mr.
M.N. Rao, learned senior counsel appearing on behalf of the
respondents.
12. We shall take the last argument of the respondents,
relating to maintainability of Civil Appeal No.6625 of 2008,
first. We find substance in that argument. It is
incomprehensible as to how the order passed by the High
Court disposing of the first appeal without any adjudication
can, by any standard, be considered as adverse to the
defendant either in the matter of final decree or any finding
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recorded by the Trial Court in O.S. No.99/1981 whilst
dismissing the suit. As a result, Civil Appeal No.6625 of 2008
deserves to be dismissed as being devoid of merit, and in
particular, as not maintainable.
13. Reverting to the former appeal, i.e. Civil Appeal No.6620
of 2008, the High Court has affirmed the findings of facts and
the conclusion recorded by the Trial Court on material issues
against the appellant/plaintiff. In that sense, the subject
appeal questions the concurrent finding of fact recorded by the
two Courts against the appellant/plaintiff. We are conscious of
the fact that merely because two Courts have taken a
particular view on the material issues, that by itself would not
operate as a fetter on this Court to exercise jurisdiction under
Article 136 of the Constitution. This Court in the case of Smt.
Indira Kaur and Ors. Vs. Sheo Lal Kapoor,1 has observed
as follows:
“7. ……… Article 136 of the Constitution of India does not
forge any such fetters expressly. It does not oblige this Court
to fold its hands and become a helpless spectator even when
this Court perceives that a manifest injustice has been
occasioned. If and when the court is satisfied that great
1
(1988) 2 SCC 488
12
injustice has been done it is not only the “right” but also the
“duty” of this Court to reverse the error and the injustice and
to upset the finding notwithstanding the fact that it has been
affirmed thrice. There is no warrant to import the concept or
the conclusiveness of divorce on the utterance of “Talaq”
thrice in interpreting the scope of the jurisdiction of this
Court under Article 136. It is not the number of times that a
finding has been reiterated that matters. What really
matters is whether the finding is manifestly an
unreasonable, and unjust one in the context of evidence
on record. It is no doubt true that this Court will unlock the
door opening into the area of facts only sparingly and only
when injustice is perceived to have been perpetuated. But in
any view of the matter there is no jurisdictional lock which
cannot be opened in the face of grave injustice. This view has
been taken in Variety Emporium v. Mohd. Ibrahim Naina to
which one of us (Thakkar, J.) was a party. The relevant
passage in the words of Chandrachud, C.J. may be quoted
with advantage: (SCC p. 255, para 6)
“It cannot be overlooked that three courts have held
concurrently in this case that the respondent has proved
that he requires the suit premises bona fide for his personal
need. Such concurrence undoubtedly, has relevance on the
question whether this Court should exercise its jurisdiction
under Article 136 of the Constitution to review a particular
decision. That jurisdiction has to be exercised sparingly. But,
that cannot possibly mean that injustice must be perpetuated
because it has been done three times in a case. The burden of
showing that a concurrent decision of two or more courts or
tribunals is manifestly unjust lies on the appellant. But once
that burden is discharged, it is not only the right but the duty
of this Court to remedy the injustice. Shri Tarkunde, who
appears for the respondent, argued that this may lead and,
in practice, does lead to different standards being applied by
different courts to find out whether a concurrent decision is
patently illegal or unjust. That, in the present dispensation,
is inevitable. Quantitatively, the Supreme Court has a vast
jurisdiction which extends over matters as far apart as
Excise to Elections and Constitution to Crimes. The court
sits in benches and not en banc, as the American Supreme
Court does. Indeed, even if the entire court were to sit to
hear every one of the eighty thousand matters which have
been filed this year, a certain amount of individuality in the
response to injustice cannot be avoided. It is a well known
fact of constitutional history, even in countries where the
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whole court sits to hear every case, that the composition of
majorities is not static. It changes from subject to subject
though, perhaps, not from case to case. Personal responses
to injustice are not esoteric. Indeed, they furnish refreshing
assurance of close and careful attention which the Judges
give to the cases which come before them. We do not believe
that the litigating public will prefer a computerised system of
administration of justice: only, that the Chancellor’s foot must
tread warily.”
(emphasis supplied)
14. Applying the principle expounded in the aforementioned
decision, we must enquire into whether the finding recorded
by the two Courts below is manifestly unreasonable and
unjust in the context of the evidence on record. What seems
to us is that the adverse findings recorded by the two Courts
below against the appellant/plaintiff is based on the
indisputable facts, such as neither were the attestors and
scribe to the suit agreements examined to prove execution
thereof by the real owners of the property nor was any
explanation or justification forthcoming for such failure. The
suit agreements are unregistered. The defendants have denied
having signed any such agreement. No attempt was made by
the appellant/plaintiff to confront the defendants and
discharge the burden by examining any handwriting expert.
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The appellant/plaintiff failed to produce any document to
show that the nine members in whose favour the initial alleged
agreement dated 30th June, 1977 was executed, have
relinquished their possession in favour of the
appellant/plaintiff. The co-owner of the property (5th
defendant) was neither joined as party in the suit agreement
dated 16th October, 1981, nor was his authority for execution
of such agreement forthcoming. The other two purchasers,
along with whom the suit agreement was executed, were also
not examined. No proof was forthcoming regarding payment of
earnest money amount at the time of execution of the suit
agreements or otherwise made to the owners of the suit
property. The appellant/plaintiff did not file any document to
show that the cheque was encashed and availed by defendant
No.4 as payment in respect of the suit agreement. No
endorsement was taken on the suit agreement dated 30th
June, 1977 (Exhibit A1), either of the vendors or vendee before
or at any time after execution of the suit agreement dated 16th
October, 1981 (Exhibit A2). The sole testimony of PW-1
regarding execution of the suit agreement was not enough to
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prove its execution. No witness was examined to prove that
there was any bargain and settlement between PW-1 and
defendant Nos.1-4 in respect of the sale transaction prior to
execution of suit agreement Exhibit A1. There is no recital in
the suit agreement to the effect that along with defendant
Nos.1-4, defendant No.5 had also agreed to sell the property
and to execute the sale deed in favour of the
appellant/plaintiff. There was no signature of defendant No.5
on the suit agreements or any reference to her, much less that
she agreed to join with defendant Nos.1-4 for sale of the suit
property. The suit agreements are executed by the first
defendant alone and not by all the co-owners. The Trial Court,
no doubt, did not accept the plea of defendant No.1 being of
unsound mind. But the High Court, on analysis of the relevant
evidence, has accepted the evidence as sufficient in that
regard.
15. The Trial Court has made exhaustive analysis of evidence
on record in the context of the material issue regarding
execution of the suit agreements and answered against the
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appellant/plaintiff, as can be discerned from paragraphs 27
to 29 of its judgment which read thus:
“27) To prove the execution of Ex.A.1 defendant 1 to 4 and
its runuinances the plaintiff did not examine the attestors
and scribe of it. There is no explanation from the plaintiff for
non examining the attestors of it. The plaintiff did not
examine the scribe of it as he is no more and his son P.W.2
came and deposed the same and also identified the writings
of his father. Except identifying the writings and signature of
the scribe, the evidence of D.W.2 is not helpful to prove its
execution and signatures of defendant 1 to 4 on Ex.A.1. As
such the evidence of P.W.2 is not much helpful to prove the
sale of the suit land and execution of Ex.A1 by respondent 1
to 4. Defendants 2, 3, and 4 who examined as D.W.2, D.W.3
and D.W.1 respectively denied their signatures on Ex.A.1
and also their execution of it in favour of P.W.1. No doubt,
the first defendant did not came into witness box on the
ground that he became mad or insane. It is the case of the
plaintiff that defendant 1 to 4 sold the plaint schedule land
to his and executed Ex.A.1 in his favour of receiving a part of
sale consideration from him. In such circumstances non
examination of first defendant does not give any adverse
inference in proving Ex.A.1, as the other defendants i.e.,
defendant 2 to 4 examined to confront their signatures or
Ex.A.1 and execution of it along with defendant 1. Similarly
the non examination of first defendant, does not
automatically prove the execution of Ex.A.1 without
examining the attesters and scribe thereupon. The evidence
of P.W.1 else goes to show that he occurred the attestor and
they are not the men of defendants to attribute any motive to
them. The plaintiff also did not examine any of the other 2
purchasers along with when we purchased and obtained
Ex.A.1 to prove the execution of Ex.A.1 and signatures of
defendants 1 and 4 agreeing to sell the suit schedule land
and receiving of Rs.45,000/- from them. Thus the sale
testimony of P.W.1, without examining the attestes, and
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his co-purchasers is not at all helpful to prove the sale of
the suit schedule land and execution of Ex.A.1 by
defendant 1 to 4 infavour of P.W.1 on 30.7.1977. As such
the plaintiff failed to prove execution of sale of the
plaint schedule land under Ex.A.1 by defendant 1 to 4.
28) Coming to the subsequent development it is the case of
the plaintiff that the defendants 1 to 4 also executed Ex.A2
contract of sale dt. 16.10.1981 infavour of the plaintiff
society basing on earlier sale agreement Ex.A1 and the same
conditions of Ex.A.1 have been adopted Ex.A2 agreement.
PW.1 deposed that Ex.A.2 agreement was prepared in
Navayuga Hotel at Vijayawada. One Gudivada Durga Rao
and M. Satyanarayana are the attestors in Ex.A.2. He does
not know where Durga Rao resides but he used to come to
Vijayawada from Tadepally side. Satyanarayana is resident
of Atta Ramayya Street in Governorpata, Vijayawada. He
himself took both the attestors to Navayuga Hotel. He
himself got Ex.A2 typed but he does not remember who gave
the matter for typing. No rough draft was prepared before
getting Ex.A.2 typed.
Except the evidence of P.W.1, there is no other evidence of
attestors to prove Ex.A.2. There is no explanation from the
plaintiff for non examination of the attestors. Further the
attestors are his men and he got them and obtained their
signatures on Ex.A.2. By the date of execution of Ex.A.2,
dt.16.10.1981, the suit in O.S.No.99/81 was already filed
against defendants 2 to 4, by defendant 6 herein. The
defendants 1 to 4 also disputed their signatures on Ex.A.2
and also its execution infavour of the plaintiff society. The
plaintiff society did not obtain any relinquishment deed of 8
other purchasers under Ex.A.1 to obtain subsequent
agreement Ex.A.2 in the name of society. Similarly there is
no endorsement on Ex.A.1 either of vendors or vendees
about it cancellation in view of subsequent agreement Ex.A.2
infavour of society. In view of the above circumstances and
without any evidence from the attestors, the sole testimony
of P.W.1 is not at all helpful to prove the execution of Ex.A.2
by defendant 1 to 4 on 16.10.1981 in Navayuga hotel at
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Vijayawada. The plaintiff filed a petition to reopen the
matter and also permit his to lead rebuttal evidence but the
defendant did not allow him to examine the attestors is also
not a satisfactory explanation. Admittedly there was no
memo reserving his right to lead rebuttal. Without examining
the attestors during the course of examination of this
witness, when the matter is coming up for argument, after
closing the evidence of defendant, the plaintiff filing a
petition to reopen the matter to examine his witnesses or
attestors is not at all a justified ground to blame the
defendants. As such for non examining the attestors of
Ex.A.1 and Ex.A.2 is not the fault of defendants as it is
the duty of plaintiff to examine them in time. When it is
the case the burden is on the plaintiff to prove the
execution of Ex.A.1 and Ex.A.2 without examining the
attestors and scribe of it blaming the defendants that
they did not allow him to examining them at later stage
by reopening the matter is of no use to satisfy the
requirements in proving a document. Thus the plaintiff
failed to prove the execution of Ex.A.W by defendant 1 to
4 prove the execution of Ex.A.2 by defendant 1 to 4
infavour of the plaintiff society in terms of earlier
agreement Ex.A.1.
29) It is the case of the plaintiff that defendant 5 agreed to
sell the property along with defendant 1 to 4. Though the
defendants 5 did not join in execution of sale agreement she
had agreed to sell and also agreed to join in execution of sale
deed. P.W.1 sale deposed that 10 or 15 days prior to Ex.A.1,
he bargained with the vendors and settled the transaction.
But the plaintiff did not adduce any evidence to prove that
defendant 5 agreed to sell and also agreed to join in
execution of sale deed and none of the witnesses are
examined to prove that there was any bargain and
settlement between P.W.1 and defendant 1 to 4 in respect of
the sale transaction and also understanding between them
prior to Ex.A.1. Further in Ex.A.1 and Ex.A.2 there is no
recital to the effect that defendant 1 to 4 along with
defendant 5 to the effect that defendant 1 to 4 along with
defendant 5 agreed to execute the Regd. Sale deed. There
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circumstances also shows that defendant 5 did not agreed to
sell the property and she did not agree to execute sale deed
infavour of plaintiff. There is a gap of more than 4 years
between Ex.A.1 and Ex.A.2. Not only Ex.A.1 but also Ex.A.2
does not bear the signature and reference of defendant 5
that she agreed to join with defendant 1 to 4 for sale of the
suit schedule property. The plaintiff also failed to explain
whey they did not obtain the signature of defendant 5
attestor on Ex.A.2 to say that she was aware and gave
consent of this agreement and earlier agreement of Ex.A.1. If
defendant 5 is aware and the plaintiff obtained any consent
or at least intimation to defendant 5, they would have
obtained the signature of defendant on Ex.A.2 – which came
into existence after more than 4 years of Ex.A.1. In such
circumstances the agreement Ex.A.1. and Ex.A.2 does not
bind on defendant 5 as she is neither party nor it was with
her consent and willing, such sale transaction took place.”
(emphasis supplied
16. That finding of the Trial Court commended to the High
Court. The view so taken by the Trial Court is certainly a
possible view and by no stretch of imagination can the finding
recorded by the two Courts below on the material issue
against the appellant be said to be manifestly unreasonable
and unjust in the context of the evidence on record.
17. Having said this, it must necessarily follow that the
appellant/plaintiff cannot be permitted to take the relief
claimed in the suit any further sans proof of execution of suit
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agreements in respect of which the relief of specific
performance is sought. All other issues would recede in the
background. It is, therefore, not necessary for us to dilate on
the other issues, such as legal bar with regard to execution of
such agreements and the effect thereof. The appellant/plaintiff
must fail in getting any relief whatsoever in the absence of a
valid and subsisting agreement operating between the parties
in relation to which relief of specific performance can be
granted. Notably, neither the agreement dated 30th June, 1977
nor the agreement dated 16th October, 1981 is a registered
document. As observed earlier, no relinquishment deed has
been executed by the nine vendees who were party to the
alleged initial agreement dated 30th June, 1977. No
endorsement was forthcoming in that regard. If so, the
agreement dated 16th October, 1981 must stand or fail on its
own. But before the execution of the second suit agreement
dated 16th October, 1981 in favour of the appellant/plaintiff,
the suit property was purported to be transferred in terms of
the agreement dated 22nd November, 1979 in favour of
respondent No.6 (original defendant No.6). During the
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pendency of the proceedings before the High Court between
the parties, a registered sale deed was executed in respect of
the suit property in favour of respondent No.6 (defendant No.6)
by the owners of the suit property. As a result of the registered
sale deed, the heirs and legal representatives of original
defendant No.6 claim to have become the owners and in
possession of the suit property.
18. As regards the factum of possession, the Trial Court
found that the appellant failed to prove the same and while
answering issue No.5, it observed as follows:
“33. Issue No.5: it is the case of the plaintiff that the
defendants 1 to 4 delivered possession of the plaint schedule
property on the date of sale under Ex.A.1 date 30.06.1977 in
favour of the purchasers and subsequently they have
delivered the same to the plaintiff society on the date of
execution of Ex.a.2 dated 16.10.1981 and since then they
have been in possession and enjoyment of the plaint
schedule property. The defendants denied the delivery of
possession to the plaintiff and their continuing over the
name as on the date of filing of the suit. P.W.1 deposed that
the Gram Panchayat approved layout which is Ex.A.7.
Survey stones were painted for the plots and pipes were also
arranged for the roads as per the layout and roads were
formed. P.W.1 denied the 6th defendant took possession of
the suit schedule property under Ex.A.1 in O.S. No.99/81
and he had been in possession of the same. P.W.1 deposed
that the suit land is an agriculture land and he had seen
copy of account No.2 available in the Urban Ceiling
Authority Officer mentioning the name of the other
defendants as enjoyers of the suit land. The village karnam
22
informed him that the suit schedule property stands in the
name of the first defendant alone. P.W.1 admitted that he
did not pay any cist for the suits land from 30.6.1977 to
16.10.1981. Subsequently he paid cist, but by then the other
suit O.S. No.99/81 was also filed. He denied that they are
not in possession or the suit land till he obtain interim
injunction order and that he came into possession of the suit
land only in pursuance of the injunction orders. The
defendants from the beginning even before filing of the suit,
by way of reply notice they have denied the sale transaction
in favour of the plaintiff and also delivery of possession. The
plaintiff did not file any document i.e. revenue records or cist
receipts to show that he paid any taxes and to say that he
was in possession of the plaint schedule property right from
the date of Ex.a.1 i.e. from 30.6.1977 till he filed this suit in
the year 1982. It is the case of the plaintiff that he along with
8 others purchased the property under Ex.a.1 and
subsequently they all formed into a Society of the plaintiff
and obtained another subsequent agreement from the
defendants 1 to 5 under Ex.A.2 dated 16.10.1981 under
Ex.A.2. But the plaintiff did not examine any of his co-
purchasers to prove delivery of possession of the plaint
schedule property to them by the defendants. Except the
sale testimony of P.W.1, there is no other evidence to say
that the defendants delivered possession to them on
30.6.1977 under Ex.a.1. If there was any such delivery of
possession on 30.6.1977 and they have continued such
possession and enjoyment over the plaint schedule property
till the date of filing of the suit in the year 1982 they would
have paid at least cist to the Revenue authorities and
obtained receipts and also examined the other co-purchaser
of P.W.1. In the absence of any such evidence, the version of
the plaintiff that the defendants 1 to 4 delivered possession
of the plaint schedule property to him and his other 8
purchasers on 30.6.1977 and they subsequently delivered it
to the Plaintiff Society on 16.10.1981 under Ex.A.2 and also
to say that they have been continuing in possession and
enjoyment of the plaint schedule property is not at all be
liable version. The obtaining of layout permission from the
Gram Panchayat under Ex.A.7 and also writ petition and its
proceedings questioning acquisition of the plaint schedule
land by the plaintiff under Exs.A.17 to A.21 are not at all
helpful to say possession and enjoyment of the plaintiff over
the plaint schedule lands. Similarly the evidence of D.Ws.1
to 7 is also not helpful to say the possession and enjoyment
of the plaintiffs over the plaint schedule property and also
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delivery of possession by the defendants 1 to 4 on 30.6.1977
under Ex.A.1. Hence, this issue is decided against the
plaintiff.”
19. The view so taken by the Trial Court commended to the
High Court and has been affirmed by it. We find no reason to
deviate from the said conclusion as it is not manifestly
unreasonable or unjust in the context of the evidence on
record.
20. Considering the above, we have no hesitation in
upholding the conclusion arrived at by both the Courts below
that the suit filed by the appellant/plaintiff deserves to be
dismissed with costs. In the course of arguments, it was
earnestly urged on behalf of the appellant before us that if the
Court was not inclined to grant the prayer for specific
performance, then this Court may direct the respondents to
refund the earnest money paid to them in furtherance of the
suit agreements. Ordinarily, such a prayer could be
considered but in the peculiar facts of the present case, it may
not be possible to entertain the same, not only because no
such express payer is sought in the plaint filed by the
24
appellant/plaintiff before the Trial Court, but also because
accepting that prayer would result in taking a contradictory
approach with the finding of the Trial Court and affirmed by
the High Court and by us, that the appellant/plaintiff had
failed to prove the factum of payment of earnest money
amount to the owners of the suit property. Notably, the factum
of execution of the suit agreements in itself is doubted. In view
of the above, no relief can be granted to the appellant/plaintiff
in the fact situation of this case.
21. We accordingly dismiss both the appeals with costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
July 31, 2018.
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