THE HON'BLE SRI JUSTICE R.KANTHA RAO
S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006
29-03-2011
Kuruvakotapaty Chinna Linganna
Alla Mallikarjuna Reddy and others
Counsel for the Appellant: Sri K.Rathanga Pani Reddy
Counsel for the Respondent :Sri G.Ramachandra Reddy
:COMMON JUDGMENT:
S.A.No.368 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.7 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003 passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.154 of 1998.
S.A.No.369 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.6 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003 passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.136 of 1998.
These two appeals are between the same parties. The subject matter of
dispute being the same and the substantial questions of law that arise for
consideration in these second appeals being the same, both these appeals are
disposed of by the following common judgment.
I have heard Sri K.Rathangapani Reddy, learned counsel appearing for the
appellants in both the appeals and Sri G.Ramachandra Reddy, learned counsel
appearing for the respondents in both the appeals.
O.S.No.136 of 1998 is filed for the relief of permanent injunction in
respect of the land of an extent of Ac.1.52 cents in Survey No.195 of Peda
Davalam Village, Bandi Atmakur Mandal, locally known as Vegula chenu,
hereinafter will be referred to as 'the schedule mentioned land', against the
defendants 1, 2 and 4 and subsequently, he filed O.S.No.154 of 1998 seeking the
relief of specific performance of agreement to sell dated 30.07.1985 against the
defendants 1 to 4.
The learned trial Court tried both the suits jointly, recorded evidence in
O.S.No.136 of 1998 and delivered common judgment referring the parties as
plaintiff and defendants, as arrayed in O.S.No.154 of 1998. For the sake of
convenience, I would like to refer the parties in the same fashion.
The brief facts relevant for considering the substantial questions of law
involved in these second appeals are stated as follows:
The plaintiff purchased the schedule mentioned land under an agreement to
sell dated 30.07.1985 from the defendants 1 and 2, who executed the agreement to
sell in his favour by receiving the entire sale consideration on the same day.
The plaintiff was put in possession of the schedule mentioned land under Ex.A.1-
agreement to sell dated 30.07.1985. According to the plaintiff, Sri Karimaddela
Sivalingam, 4th defendant, having colluded with the defendants 1 and 2 tried to
trespass in to the schedule mentioned land, then he filed O.S.No.136 of 1998
seeking the relief of permanent injunction against the defendants 1, 2 and 4.
Subsequently, he also filed O.S.No.154 of 1998 seeking specific performance of
contract in terms of Ex.A.1-agreement to sell, dated 30.07.1985 against the
defendants 1 to 4. Both the suits are based on Ex.A.1-agreement to sell, dated
30.07.1985 said to have been executed by the defendants 1 and 2.
Before the trial Court, PWs.1 to 3 were examined and Exs.A.1 to 15 were
marked on behalf of the plaintiff. Whereas, DWs.1 to 4 were examined and
Exs.B.1 to 19 were marked on behalf of the defendants.
The learned Principal Junior Civil Judge, Nandyal, decreed both the suits
granting relief of specific performance in O.S.No.154 of 1998 and also granting
the relief of permanent injunction in O.S.No.136 of 1998 against the defendants.
In both the suits, the first defendant remained
ex parte. The learned trial Court basing on the evidence of PW.1-plaintiff,
PW.2-scribe of Ex.A.1-agreement to sell, dated 30.07.1985, PW.3-attestor of
Ex.A.1 held that Ex.A.1-agreement to sell, dated 30.07.1985 is proved by the
plaintiff and that the plaintiff was put in possession of the schedule mentioned
land under the said agreement by the defendants 1 and 2 after receiving entire
sale consideration. The learned trial Court as well as the first appellate
Court, concurrently held that Ex.A.1-agreement to sell, dated 30.07.1985 is true
and valid. The theory put-forth by the second defendant was rejected by both
the Courts below. Subsequently, the defendants 1 and 2 executed Ex.B.19-
registered sale deed, dated 30.03.1998 in favour of the 4th defendant in respect
of the suit land. It was contended by the defendants before the trial Court
that Ex.B.3-legal notice dated 13.12.1993 sent by the defendants was received by
the plaintiff which is evident from Ex.B.5-acknowledgment and the plaintiff
filed the suit seeking the relief of specific performance i.e. O.S.No.154 of
1998 on 09.04.1998 i.e. after a period of 8 years and therefore, the suit is
barred by limitation by virtue of Article 54 of the Limitation Act.
It was contended inter alia before the trial Court by the defendants that
in view of Ex.B.3-legal notice, dated 13.12.1993 issued by the second defendant
to the first defendant (brother of the second defendant), third defendant
(mother of the second defendant), Sugali Narayana and the plaintiff stating that
the first defendant having colluded with the plaintiff obtained the signatures
of the defendants on some blank papers on the pretext of executing lease deeds
in respect of their landlords, created some documents and alienated the property
to the plaintiff and therefore, the plaintiff had not obtained any sale deed
from the defendants 1 and 3 in respect of the schedule mentioned land.
According to Article 54 of the Limitation Act, the suit for specific performance
of contract of sale has to be filed within three years from the date fixed for
performance of contract and if no such date is fixed, it shall be filed within
three years from the date when the plaintiff refused notice of specific
performance.
The learned trial Court, however, took the view that there is no reference
in Ex.B.3-registered legal notice, dated 13.12.1993 about the Ex.A.1-agreement
to sell, dated 30.07.1985, the plaintiff came to know about the refusal of
performance only on 09.04.1998, when the written statement was filed by the
defendants 2 and 3 in O.S.No.136 of 1998 mentioning that they executed Ex.B.19-
sale deed in favour of the 4th defendant. Limitation according to the learned
trial Court commences from 09.04.1998, but not from 15.12.1993 the date on which
Ex.B.3 -notice, dated 13.12.1993 was served on the plaintiff.
As to this, it may be stated that though there is no reference to Ex.A.1-
agreement to sell, dated 30.07.1985 in Ex.B.3-legal notice sent by the second
defendant, he made his intention clear therein by stating that the plaintiff has
not obtained any registered sale deed from defendants 1 and 3 and they were
trying to make such alienation jeopardizing rights of the second defendant in
the schedule mentioned land. From the contents of Ex.B.3-legal notice,
therefore, it is obvious that the second defendant communicated to the plaintiff
in vivid terms that he is not going to join defendants 1 and 3 in executing
registered sale deed in favour of the plaintiff. From this, the plaintiff, who
was in possession of Ex.A.1-agreement to sell, must have understood that the
specific performance of contract contained in the said agreement was refused by
the second defendant. The trial Court, therefore, went wrong in arriving at the
finding that the limitation for specific performance of contract under Ex.A.1-
agreement to sell commences from 09.04.1998 when the plaintiff had knowledge
about execution of Ex.B.19-sale deed by the defendants 2 and 3 in favour of the
4th defendant and not from 15.12.1993, the date on which Ex.B.3 legal notice
dated 13.12.1993 was received by the plaintiff.
One of the substantial questions of law raised by the plaintiff in these
appeals is the decision of the first appellate court that the cause of action in
the suit for perpetual injunction as well as in the suit for specific
performance of agreement to sell is one and the same and on failure by the
plaintiff to include the relief of specific performance in the first suit for
perpetual injunction filed by him debars him from filing the subsequent suit for
specific performance is contrary to the settled principles of law and the same
is liable to be set aside in these second appeals.
As to this contention, I would like to emphasize that the suit for perpetual
injunction was filed when there was an attempt by the defendants to trespass in
to the schedule mentioned land, whereas the suit for specific performance was
filed by the plaintiff to get a regular sale deed executed by the defendants in
terms of Ex.A.1-agreement to sell dated 30.07.1985. The cause of actions in
both the suits is different for which separate suits may be brought by the
plaintiff. The learned trial Court was right in holding that since both the
suits are based on different causes of action, the suit for specific performance
is not barred under Order 2 Rule 2(3) of C.P.C. The finding, therefore recorded
by the learned first appellate Court according to which it reversed the finding
of the trial Court holding that the suit for specific performance is barred
under Order 2 Rule 2 C.P.C. being contrary to the provisions of Order 2 Rule 2
C.P.C. is set aside in these second appeals. However, it does not change the
result of the suit since this Court upheld the finding of the first appellate
Court that the suit for specific performance of agreement to sell in terms of
Ex.A.1 filed by the plaintiff is barred by limitation.
Thus, the substantial question of law raised by the plaintiff in the
appeals that the decision rendered by the first appellate Court reversing the
finding of the trial Court and holding that the suit is barred by limitation is
contrary to law and also to the material evidence on record has absolutely no
foundation. This Court, therefore, affirms the finding of the first appellate
Court that the suit for specific performance of agreement to sell filed by the
plaintiff is barred by limitation and answers the said point against the
plaintiff.
Another substantial question of law which was raised by the plaintiff for
consideration in the second appeals is that the first appellate Court having
found that the plaintiff has been in possession of the schedule mentioned land
ever since the date of Ex.A.1-agreement to sell having taken possession of the
same under the said agreement, he is not entitled for the relief of permanent
injunction since the suit for specific performance of contract is barred by
limitation, is contrary to the provisions envisaged under Section 53-A of the
Transfer of Property Act, the same being wholly erroneous, is liable to be set
aside in these second appeals and O.S.No.136 of 1998 filed by the plaintiff for
the relief of permanent injunction has to be decreed by setting aside the
finding of the first appellate Court.
A combined reading of Section 19 of the Specific Relief Act and Section 53-A of
the Transfer of Property Act makes it clear that the rights of a subsequent
transferee for consideration, who has no notice of the earlier contract are not
affected in an action brought by a person, who was put possession of immoveable
property under an earlier written contract.
In the instant case, it is to be seen that whether the 4th defendant is a
bona fide purchaser for value without notice of the earlier contract of sale
i.e. Ex.A.1-agreement to sell, dated 30.07.1985. The parties to the suit i.e.
plaintiff as well as the defendants are residents of one and the same village.
From various documents filed by the plaintiff, such as, Exs.A2 to A.4-land
revenue receipts, Exs.A.5 and A.6 pattedar passbook and the title deed, Exs.A.8
to A.14-certified copies of extracts of adangal clearly indicate that the
plaintiff has been in possession of the schedule mentioned land. The learned
first appellate Court also concurred with the findings of the learned trial
Court on this aspect and held that the plaintiff having obtained the schedule
mentioned land under Ex.A.1-agreement to sell has been in possession and
enjoyment of the same and that there was no iota of documentary evidence adduced
by the defendants to show that subsequent to Ex.A.1-agreement to sell either
defendants 1 to 3 or defendant No.4 who is the subsequent purchaser are in
possession of the schedule mentioned land. Considering the long uninterrupted
possession of the plaintiff over the schedule mentioned land and the fact that
the plaintiff as well as the 4th defendant are residents of one and the same
village and also the fact that all the revenue records in respect of the
schedule mentioned land are maintained in the name of the plaintiff, the learned
first appellate Court recorded a positive finding that the 4th defendant must
have been aware of Ex.A.1-agreement to sell and the possession of the plaintiff
in pursuance thereof and that he cannot plead ignorance of the earlier
transaction. The learned first appellate Court further emphasized that any
little attempt on the part of the 4th defendant would have revealed about the
earlier transaction and the maintenance of all relevant records in the name of
the plaintiff in respect of the suit land. Therefore, the learned first
appellate Court recorded categorical finding that the 4th defendant is not a
bona fide purchaser for value without notice of the earlier Ex.A.1-agreement to
sell executed by defendants 1 and 2 in favour of the plaintiff and putting him
in possession of the schedule mentioned land under the said agreement.
Having recorded a finding that the plaintiff is not a bona fide purchaser for
value without notice of the earlier contract of sale and that the plaintiff is
in possession of the schedule mentioned land having been put in possession of
the same by the defendants 1 and 2 under Ex.A.1 agreement to sell misdirected
itself in holding that since the suit for specific performance of contract of
sale filed by the plaintiff is barred by limitation, he is not entitled for the
decree of permanent injunction. The learned first appellate Court was also
under the erroneous impression that a person in possession having obtained the
same under a valid written contract of sale can protect his possession having
recourse to the doctrine of part performance of contract embodied in Section 53-
A of the Transfer of Property Act, but cannot, as the plaintiff file a suit for
permanent injunction.
The view taken by the learned first appellate Court is contrary to the
settled legal position in relation to the doctrine of part performance under
Section 53-A of the Transfer of Property Act. It has been laid down in large
number of decisions that even if the plaintiff's remedy for specific performance
is barred by limitation, he can still has a right to invoke the doctrine of part
performance envisaged under Section 53-A of the Transfer of Property Act and
protect his possession even by instituting a suit seeking relief of perpetual
injunction.
It is true that the doctrine does not confer any title on the person who took
possession of the property in part performance of a written contract of sale,
but it affords protection to the person against the transferor or any person
claiming under him. In the instant case, admittedly, the plaintiff obtained
possession of the schedule mentioned land in part performance of Ex.A.1-
agreement to sell, dated 30.7.1985. Merely because the suit for specific
performance of contract is barred by limitation, it cannot be said that he has
not been ready and willing to perform his part of contract. The very fact that
he paid the entire sale consideration indicates that there was nothing remained
to be performed on his part. The plaintiff has not only a right to defend his
possession in an action brought by the transferor or any person claiming under
him, he can also institute a suit for injunction for the purpose of protecting
his possession. The trial court, therefore, obviously in error in holding that
since the relief of specific performance of contract is not available to the
plaintiff as it was barred by time, he is not entitled to protect his possession
by filing a suit for permanent injunction against his transferors and the 4th
defendant, who subsequently obtained ExB.19 sale deed from the defendants 2 and
3. Both the Courts have found concurrently that the 4th defendant is not a
bona fide purchaser for value, without notice of Ex.A.1-agreement to sell. If
that is so, the plaintiff can enforce his defence available to him under Section
53-A of the Transfer of Property Act against his transferors as well as against
the defendant No.4, who obtained the registered sale deed -Ex.B.19 from the
defendants 2 and 3 and claiming rights through them. The defendants, therefore,
in the circumstances, indicated hereinabove cannot resist the suit of permanent
injunction filed by the plaintiff and the plaintiff is certainly entitled for a
decree of permanent injunction against the defendants, despite the fact that the
suit for specific performance is dismissed being barred by limitation. The
learned first appellate Court went wrong on this aspect in reversing the decree
and judgment passed by the learned trial Court in favour of the plaintiff
granting perpetual injunction against the defendants. This is a manifest error
of law committed by the first appellate Court, which is in the nature of
substantially affecting rights of the plaintiff to protect his possession and
therefore, it raises a substantial question of law in the second appeal.
For the foregoing reasons, the decree and judgment dated 02.01.2006 passed by
the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal in
A.S.No.7 of 2004 is confirmed and the decree and judgment dated 02.01.2006
passed by the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal
in A.S.No.6 of 2004 is set aside affirming the decree and judgment dated
26.12.2003 passed by the Principal Junior Civil Judge, Nandyal granting
perpetual injunction in favour of the plaintiff.
S.A.No.368 of 2006 fails and the same is dismissed. S.A.No.369 of 2006, however,
succeeds and the same is allowed. There shall be no order as to costs.
