Suit for specific performance - respondent terminated the agreement of sale and refund the advance amount due to his personal reasons - Plaintiff claimed that only 370 Sq.Yards avaialbe but not 672 Sq.Yards as mentioned in the agreement of sale and filed suit for specific performance for 370 Sq.Yards- trail court decreed - appeallant court set aside the trial court decree and judgment - SA
Burden lies on the plaintiff to prove that the avaialbe extent is only 370 Sq.Yards and not 672 Sq.Yards as mentioned in the agreement of sale. 2023:APHC:25048
Held that The agreement of sale stated that the extent of land in the plot was 672 sq yards. The appellant claimed that only 370 sq. yards was available while the respondent claimed 672 sq. yards was available. The appellant filed a suit for specific performance calling upon the respondent to execute a deed of sale for the said plot by receiving sale consideration for an extent of 370 sq. yards. In such circumstances, the burden of demonstrating that the extent of land available was only 370 sq. yards, falls squarely on the appellant. Such burden had not been discharged by the appellant. The appellant never called upon the respondent to come forward for a joint measurement of the land. Further, the appellant did not demonstrate before the trial Court or the appellate Court that the land available in the plot was only 370 sq. yards and that he was entitled for a deed of sale on that basis. No attempt was made before the trial Court for adducing any evidence in relation to the actual extent of land available on the site. Consequently, it cannot be said that the appellant was ready and willing to perform her part of the agreement of sale, as the said offer is conditional on rejection of the extent of land available. 2023:APHC:25048
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.284 of 2023
ALAKA SATYAVATHI
Versus
MUDDIREDDIPALLI ANJANAPPA
JUDGMENT:
Heard Sri M.P.V.N.V. Sastry, learned counsel for the appellant.
2. The appellant is the plaintiff in the suit. The appellant had
entered into an agreement of sale with the respondent on 13.09.2011 for
purchase of a plot of land, situated in Eluru, said to be admeasuring 672
Sq. Yds., belonging to the respondent. It was to be purchased by the
appellant at the rate of Rs.2300/- per sq. yard. An advance of
Rs.1,00,000/- was paid. The agreement also stipulated that the appellant
was to keep the sale price ready within one month and 15 days from the
date of agreement and inform of the respondent. Upon such information,
the respondent was to get the plot of land measured after excluding
certain crosses, which were on the plot, and receive the sale consideration
at the rate of Rs.2300/- per sq. yard for the land which was actually
available on the site. The respondent was to execute and register
necessary deed of sale in the registrar office upon receipt of the sale
consideration.
3. On 03.10.2011, the respondent sent a letter to the appellant
stating that he was unable to sell the plot of land to the appellant due to
family reasons and enclosed a cheque for Rs.1,00,000/- towards
repayment of the advance taken by him. In reply to this letter, the
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appellant got a legal notice dated 13.10.2011 issued to the respondent,
stating that the respondent had got the site measured with the help of a
private surveyor, and this survey had revealed that the actual extent of
the land available for sale is only 370 sq. yards, after excluding the
crosses on all sides of the plot. The appellant also took the stand that
refusal of the respondent to go through with the sale transaction and
returning the advance amount was not permissible and was not
acceptable to the appellant.
4. After setting out her position, the appellant called upon the
respondent to be present on 15.10.2011 at the registrar office, Vatluru,
for receiving the sale consideration calculated on the basis of the extent of
land available being 370 sq. yards and to register necessary deed of sale
failing which the appellant would be constrained to file a suit for specific
performance of the agreement of sale.
5. In reply to this notice, the respondent stated that he had got
the land surveyed by the Mandal Surveyor and as per the said survey an
extent of 612 sq. yards is available in the plot of land for sale, while 60 sq.
yards had been given to the respondent for road widening; physical
possession of the land had never been given to the appellant; the
agreement of sale was signed by the respondent at his residence at
Gudimalkapur at Mehadipatnam, Hyderabad as the agreement of sale had
been brought to Hyderabad by the husband of the appellant.
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6. The respondent took objection to the action of the appellant
in cutting the trees and bushes on the land and demolition of the cement
pillars which were erected by the respondent. The respondent also denied
the allegation of the appellant that the measurement of the site was done
jointly by the appellant and respondent with the help of a private surveyor
as the respondent had not visited Eluru from the date of the signing of
the agreement of sale.
7. After receipt of the said reply notice, the appellant filed
O.S.No.405 of 2011 before the Senior Civil Judge, Eluru for specific
performance of the agreement of sale, dated 13.09.2011. The respondent
had entered appearance and filed his written statement. After both sides
had adduced their evidence in the trial and after hearing both sides, the
trial Court allowed the suit by judgment and decree dated 05.03.2018.
Aggrieved by this judgment and decree, the respondent moved the
II Additional District Judge, Eluru, by way of A.S.No.45 of 2018. This
appeal was allowed by the appellate Court by judgment and Decree dated
23.02.2023. Aggrieved by the said judgment and decree, the appellant
has moved this Court by way of the present second appeal.
8. The trial Court accepted the contention of the appellant that
the termination of agreement by the respondent was untenable and that
the respondent was liable to execute necessary deed of sale after
receiving the sale consideration calculated on the basis of the extent of
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4
land being 370 sq. yards, as the appellant was always ready and willing to
perform her part of promise made in the agreement of sale.
9. The appellate Court took the view that in the absence of any
cogent evidence or proof that the actual extent of land available on the
site is only 370 sq. yards as opposed to the extent of 672 sq. yards
mentioned in the agreement of sale, the appellant was not entitled to
contend that only 370 sq. yards of land was available and to offer the sale
consideration on that basis. The appellate Court recorded that, as per the
pleadings of the appellant, the site was measured by the respondent in
the presence of the appellant and the actual extent of land was fixed at
370 sq. yards. The appellate Court also recorded that the legal notice
dated 10.10.2011, issued on behalf of the appellant, marked as Ex.A.4,
states that the appellant had measured the schedule land in the presence
of the respondent through a private surveyor. The appellate Court, while
holding that there was a contradiction in the version of the appellant, had
also taken the view that neither of these facts was elicited in the crossexamination of the witnesses of the respondent.
10. The appellate Court, thereupon, allowed the appeal on both
these grounds by holding that the appellant was not entitled for the relief
of specific performance of the agreement of sale.
11. Sri M.P.V.N.V. Sastry, learned counsel for the appellant
would argue that the burden of demonstrating the alleged shortfall in the
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5
extent of land was actually on the respondent and that the said burden
had not been discharged by the respondent in any manner as there was
no pleading on this issue. He further submitted that the appellate Court
ought to have appreciated that the respondent had initially taken the
stand that he was rescinding the agreement due to family reasons, while
this stand changed during the cross-examination that the respondent
stated that he had refused to execute the deed of sale on account of the
objections raised by the appellant in relation to the extent of land
available. He would submit that such a discrepancy is sufficient to show
that there was no valid reasons for refusal to execute necessary deed of
sale and the appellate Court instead of considering this issue, had gone
into the question of whether the appellant is entitled to specific
performance on account of the difference in extent of land.
12. A perusal of the pleadings and the evidence show that the
agreement required the appellant to indicate that the sale consideration
was made ready upon which the plot was to be measured for fixing the
actual sale consideration payable. This stage never occurred. The
respondent sent a letter dated 03.10.2011 for cancellation of the
agreement of sale, while the appellant, in reply to this letter, called upon
the respondent to execute sale deed for an extent of 370 sq. yards by
accepting sale consideration for that extent of land.
13. The agreement of sale stated that the extent of land in the
plot was 672 sq yards. The appellant claimed that only 370 sq. yards was
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S.A.No.284 of 2023
6
available while the respondent claimed 672 sq. yards was available. The
appellant filed a suit for specific performance calling upon the respondent
to execute a deed of sale for the said plot by receiving sale consideration
for an extent of 370 sq. yards. In such circumstances, the burden of
demonstrating that the extent of land available was only 370 sq. yards,
falls squarely on the appellant. Such burden had not been discharged by
the appellant. The appellant never called upon the respondent to come
forward for a joint measurement of the land. Further, the appellant did not
demonstrate before the trial Court or the appellate Court that the land
available in the plot was only 370 sq. yards and that he was entitled for a
deed of sale on that basis. No attempt was made before the trial Court for
adducing any evidence in relation to the actual extent of land available on
the site. Consequently, it cannot be said that the appellant was ready and
willing to perform her part of the agreement of sale, as the said offer is
conditional on rejection of the extent of land available.
14. In the said circumstances, the finding of the appellate Court,
that the specific performance of the agreement cannot be ordered on
account of the appellant failing to demonstrate the extent of land, is in
accordance with law.
15. This Court does not find any question of law that needs to
be answered by this Court. In any event, this Court does not find any
defect or shortcoming in the judgment and decree of the appellate Court.
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16. For all the aforesaid reasons, the second appeal is dismissed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
__________________________
R. RAGHUNANDAN RAO, J.
______ July, 2023
Js.
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S.A.No.284 of 2023
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HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO
Second Appeal No.284 of 2023
_____ July, 2023
Js.
