IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
AT HYDERABAD
MONDAY, THE THIRTY FIRST DAY OF JANUARY
TWO THOUSAND AND ELEVEN
TWO THOUSAND AND ELEVEN
PRESENT
THE HON'BLE SRI JUSTICE K.C. BHANU
SECOND APPEAL No.304 OF 2010
Between:
Sri S. G.
Bhagavantha Reddy
.....APPELLANT
AND
Sri V.
Laxminarayanaiah
....RESPONDENT
The Court made the following:
JUDGMENT:
This Second Appeal, under Section 100 of the Code
of Civil Procedure, 1908, is directed against the judgment and decree, dated
04.11.2008, in Appeal Suit No.3 of 2006, on the file of the Senior Civil Judge,
Hindupur, whereunder and whereby, the judgment and decree, dated 28.11.2005, in
Original Suit No.203 of 1999, on the file of the Junior Civil Judge, Hindupur,
decreeing the suit filed for specific performance with costs by directing the
appellant/defendant to execute registered sale deed in terms of Ex.A1 within
three months from that date and the respondent/plaintiff to deposit the balance
of sale consideration within twenty days from that date, were confirmed.
2. For better appreciation of facts, the parties
hereinafter are referred to as they are arrayed in the trial Court.
3. The plaintiff filed the suit stating as follows:
The defendant is the owner of the plaint schedule
property. He agreed to sell the said property and the plaintiff accepted to
purchase the same for a sum of Rs.80,000/-. On 08.07.1999, the defendant had
taken Rs.73,000/- as advance and executed agreement of sale, Ex.A1, in favour
of the plaintiff. The remaining balance of sale consideration has to be paid by
the plaintiff within one year and on such payment, the plaintiff has to obtain
the registered sale deed. Subsequently, though the plaintiff is willing to
perform his part of contract, the defendant failed to perform his part of
contract to execute a registered sale deed by receiving balance of sale
consideration. So, the plaintiff got issued notice on 20.08.1999. The defendant
gave reply on 23.08.1999 with false allegations. Hence, the suit to direct the
defendant to execute the registered sale deed by receiving balance of sale
consideration.
4. The defendant filed written statement stating that the
allegations mentioned in the plaint that the defendant agreed to sell the
plaint schedule property to the plaintiff for a sum of Rs.80,000/-; the
execution of agreement of sale, Ex.A1, by the defendant by taking advance of
Rs.73,000/- and that the registered sale deed has to be executed within one
year from the date of agreement of sale by taking the balance of sale
consideration, are not correct. It is further stated that the defendant is a
cement dealer. The plaintiff is a wholesale dealer having shops at Lepakshi and
Gowribidanur. The defendant used to purchase cement from the plaintiff on
credit basis and sell the same at Bangalore. During those transactions, the
defendant fell due a sum of Rs.73,000/- to the plaintiff. The plaintiff with
his rowdy followers obtained the signatures of the defendant on a stamp paper
by force.
It is further stated that the plaint schedule property is
situated nearby the site belonging to his wife. The suit property was
constructed by the wife of the defendant with the financial help of her
parents. As per the agreement of sale, one year time was mentioned to execute
the registered sale deed, but within two months, the plaintiff had issued
notice. It itself shows that the agreement of sale is not genuine. There is no
cause of action and therefore, the defendant prays to dismiss the suit.
5. Basing on the above pleadings,
the following issues are framed by the trial Court:
“1. Whether the plaintiff is
entitled to specific performance of agreement of sale D/8-7-1999?
2. To what relief?”
6. During trial, PWs.1 to 3 were examined and Exs.A1 to
A3 were got marked, on behalf of the plaintiff, and on behalf of the defendant,
DWs.1 and 2 were examined, but no documentary evidence was marked.
7. The trial Court, placing reliance on the evidence of
PWs.1 to 3 and DW.2, decreed the suit. On appeal, the appellate Court confirmed
the same. Challenging the same, the present Second Appeal is filed by the
defendant.
8. According to the learned counsel for the
appellant/defendant the substantial questions of law are whether the
unregistered agreement of sale, dated 08.07.1999, is admissible in evidence,
when the agreement of sale is compulsorily registerable document in view of amendment
to Section 17 of the Registration Act, 1908, (for short, “the Act”), but not
registered, and whether the plaint schedule property is different from the
property to which the respondent/plaintiff obtained an agreement of sale and
hence, he prays to admit the Second Appeal and to set aside the impugned
judgment.
9. On the other hand, learned counsel for the
respondent/plaintiff contended that as the execution of Ex.A1 was admitted, the
trial Court rightly decreed the suit and the same was rightly affirmed by the
appellate Court; that the concurrent findings of both the Courts below need not
be interfered with and hence, he prays to dismiss the appeal.
10. The suit is filed for enforcement of contract basing
on Ex.A1 - agreement of sale, dated 08.07.1999, said to have been executed by
the defendant in favour of the plaintiff. The initial burden is on the
plaintiff to show that the defendant executed Ex.A1 in his favour. The
plaintiff examined himself as PW.1. The evidence of PW.1 would clearly go to
show that the defendant agreed to sell the house with RCC roof and open place
and he accepted to purchase the same for consideration of Rs.80,000/-; that he
gave an amount of Rs.73,000/- as advance on 08.07.1999; and that the defendant
executed Ex.A1-agreement of sale in his favour. The defendant examined himself
as DW.1. He admitted his signature in Ex.A1 in the first sheet and last sheet.
PWs.2 and 3, who are the scribe and attester of Ex.A1, also spoke about the
execution of Ex.A1 by the defendant by receiving advance amount of Rs.73,000/-
from the plaintiff. Similarly, DW.2, who is another attester of Ex.A1, stated
that Ex.A1 was executed by the defendant in favour of the plaintiff after
receiving a sum of Rs.73,000/-. So, the initial burden placed on the plaintiff
is discharged.
11. The case of the appellant/defendant is that in
respect of the business transaction between him and the respondent/plaintiff,
he became due to the plaintiff to a tune of Rs.73,000/-; that in respect of the
said transaction, the plaintiff came to his house and obtained his signature on
stamp and white paper by force and created Ex.A1. That evidence is not
supported by any other evidence. There is no need for the defendant to sign on
the alleged blank stamp papers, when an amount of Rs.73,000/- was due by him to
the plaintiff in connection with the cement business. The said fact that he was
doing any business in cement has been specifically denied by the plaintiff. So,
the question of due of any amount by the defendant to the plaintiff in
connection with the cement business does not arise. Even otherwise, the finding
of both the Courts below is based upon proper appreciation of evidence on
record. The only substantial question of law raised by the appellant/defendant
is that whether Ex.A1 was unregistered and it can be relied upon.
12. No doubt, under Section 17 (1) (g) of the Act, an
agreement of sale of immovable property of value of Rs.100/- and upwards is
compulsorily registerable. But, Section 17 (1A) of the Act reads that “the
document containing contracts to transfer for consideration, any immovable
property for the purpose of Section 53-A of the Transfer of Property Act, 1882,
(4 of 1882) shall be registered if they have been executed on or after
commencement of the Registration and Other Related Laws (Amendment) Act, 2001
and if such documents are not registered on or after such commencement, then,
they shall have no effect for the purpose of the said Section 53-A;”. Section
53-A of the Transfer of Property Act, 1882 (for short, “TP Act”), reads as follows:
“Part performance.-
Where any person contracts to transfer for consideration any immoveable
property by writing signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained with reasonable
certainty, and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee, being
already in possession, continues in possession in part performance of the
contract and has done some act in furtherance of the contract, and the
transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that the contract, though required to be registered, has not been
registered, or, where there is an instrument of transfer, that the transfer has
not been completed in the manner prescribed therefor by the law for the time
being in force, the transferor or any person claiming under him shall be
debarred from enforcing against the transferee and persons claiming under him
any right in respect of the property of which the transferee has taken or
continued in possession, other than a right expressly provided by the terms of
the contract.
Provided that nothing
in this section shall affect the rights of a transferee for consideration who has
no notice of the contract or of the part performance thereof.”
The ingredients under Section 53-A of the TP Act are (1)
Any person contracts to transfer for consideration any immovable property in
writing signed by him or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable certainty and (2)
The transferee has, in part performance of the contract, taken possession of
the property or any part thereof, or the transferee, being already in
possession, continues in possession in part performance of the contract and has
done some act in furtherance of the contract, and the transferee has performed
or is willing to perform his part of the contract. The necessary ingredients
under Section 53-A of the TP Act apply to the present facts of the case.
Therefore, by virtue of Section 17 (1A) of the Act, a document containing
contract to transfer immovable property covered under Section 53-A of the TP
Act shall be registerable only after 2001. Admittedly, the agreement of sale
under Ex.A1 was executed by the defendant in favour of the plaintiff on
08.07.1999. Therefore, by the date of execution of Ex.A1, the question of
registration as required under Section 17 (1) (g) of the Act does not arise.
Section 17 (1) (g) of the Act has to be read in consonance with Section 17 (1A)
of the Act in juxta position as they have got to
be. If these two provisions are read together, it is clear
that the document Ex.A1 need not be registered as on the date of its execution.
Therefore, the point raised by the learned counsel for the appellant/defendant
that Ex.A1 was unregistered and it cannot be relied upon, cannot be said to be
a substantial question of law. In the absence of any substantial question of
law, the question of admission of the Second Appeal does not arise. Hence,
there are no grounds to interfere with the impugned judgment and decree.
13. Accordingly, the Second Appeal is dismissed at the
stage of admission. There shall be no order as to costs.
_______________
K.C. BHANU, J
January 31, 2011
MD
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