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Mamidala Suryakantamma Vs. Thummala Venkatachalam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 2216 of 1961
Judge
Reported inAIR1966AP110
ActsSpecific Relief Act, 1877 - Sections 27; Andhra Court Fees and Suits Valuation Act - Sections 39
AppellantMamidala Suryakantamma
RespondentThummala Venkatachalam and anr.
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateK.B. Krishnamurthy, Adv.
DispositionPetition dismissed
Excerpt:
.....(b) of specific relief act, 1877 - plaintiff filed suit for specific performance of agreement to sell suit land executed by first defendant - also prayed for possession of suit land against second defendant who was tenant of suit land - alleged that suit was not of specific performance as against second defendant and that it was under valued - plaintiff's claim was under section 27 (b) and was properly valued - proper court-fee paid in respect of claim - held, suit of specific performance was not only against first defendant but also against second defendant as he colluded to dispossess plaintiff. - - this allegation really brings the, case under section 27(b) of the specific relief act which stales that specific performance of a contract may be, enforced against any other person..........o. s. 120 of 1959 on the file of the district munsif's court, peddapuram, was a suit filed for specific performance of an agreement to sell the plaint schedule lands, alleged to have been executed by the first defendant in favour of the plaintiff. in the plaint it was alleged that the second defendant was a tenant under the first defendant cultivating the lands. the agreement of sale on which the plaintiff relied is dated 25th february, 1959. it was further alleged in the plaint that the first defendant in order to defeat the claim of the plaintiff, colluded with the second defendant, who is her mother's sister's son, and brought into existence an agreement to sell the suit lands to the second defendant. it is on these allegations the suit was filed for specific performance of an.....
Judgment:
ORDER

Chandrasekhara Sastry, J.

1. O. S. 120 of 1959 on the file of the District Munsif's Court, Peddapuram, was a suit filed for specific performance of an agreement to sell the plaint schedule lands, alleged to have been executed by the first defendant in favour of the plaintiff. In the plaint it was alleged that the second defendant was a tenant under the first defendant cultivating the lands. The agreement of sale on which the plaintiff relied is dated 25th February, 1959. It was further alleged in the plaint that the first defendant in order to defeat the claim of the plaintiff, colluded with the second defendant, who is her mother's sister's son, and brought into existence an agreement to sell the suit lands to the second defendant. It is on these allegations the suit was filed for specific performance of an agreement to sell dated 25-2-1959. The relief asked for was also for possession of the suit lands not only against the first defendant but also against the second defendant.

2. The first defendant pleaded that the suit was not properly valued and the court fee was not properly paid. It was urged by the first defendant that though court fee was paid for specific performance of the agreement on the consideration for which the sale was to be effected, still since possession was asked for against the second defendant also who is in actual physical possession of the land the plaintiff has further to value the suit as one for possession also and pay court fee thereon.

3. This objection was upheld by the trial Court. It found that if the suit is valued as contended for by the defendant, it would be beyond the pecuniary jurisdiction of the Munsifs Court. Therefore the trial Court ordered that the plaint fo be returned to the plaintiff for presentation to proper Court.

4. The plaintiff appealed to the Subordinate Judge's Court, Kakinada. The learned Subordinate Judge held that though possession was claimed even as against the second defendant, the suit was essentially one for specific performance of an agreement to sell and that under Section 39 of the Andhra. Court Fees and Suits Valuation Act, 1956 the suit was properly valued and proper court fee paid on the amount of consideration is adequate.

5. Section 39 prescribes that in a suit for specific performance with or without possession, tee shall be payable as in the case of a con-tract of sale, computed on the amount of the consideration. In that view, the lower Court set aside the order of the trial Court returning the plaint and directed the District Munsif's Court, Peddapuram, to lake it on its file and proceed with the trial of the suit. Hence this Civil Revision Petition Petition is filed by the first de-fendant on whose behalf the learned counsel urged the same point as in the trial Court.

6. Mr. Veerabhadrayya, the learned counsel for the petitioner has argued that the suit is not one for specific performance as against the second defendant. He was not a party at all to the agreement to sell. The second defendant was not bound to deliver possession of the property to the plaintiff under any agreement entered into between himself and the plaintiff. It is further pointed out that there was an allegation in the plaint that the second defendant was a tenant cultivating the lands under the first defendant. Hence the suit could not be referred to as one lor specific performance, against the second defendant, but was really one for possession and the relief for possession, according to the learned counsel, has to be valued separately and court fee has to be paid thereon. If so, the District Munsif's Court would not have jurisdiction to try the suit. In support of this argument, reliance is placed upon the decision of the Full Bench of the Madras High Court in Suryanarayanacharyulu v. Narasimhaswamy, AIR 1939 Mad 360 (FB). But the facts of that case are entirely different. The learned Judges pointed out that the suil in that case was really not one for specific performance, but was a suit by a lessee for possession as against the lessor and other persons who were actually in physical possession. The lease deed itself was executed by the lessor but the, lessee could not obtain possession which was with third parties but no doubt it was alleged that the other defendants were colluding with the lessor. It is on these lads that the Full Bench held that that suit was not really one for specific performance but for possession.

7. In the present case there is an allegation in the plaint that the second defendant obtained, collusively from the first defendant, an agreement to sell the suit property to himself in order to defeat the plaintiffs rights under the agreement to sell dated 25-2-1959 executed by the first defendant. This allegation really brings the, case under Section 27(b) of the Specific Relief Act which stales that specific performance of a contract may be, enforced against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. There can be no doubt that specific performance can be asked for and granted against any subsequent transferee with a notice of the prior contract. The claim made by the plaintiff in the present instance against the second defendant is one such case under Section 27(b) of the Specific Relief Act. Thus the suit is essentially one for specific performance not only against the first defendant but also against the second defendant and it is properly valued and proper court fee is paid as prescribed under Section 39 of the Andhra Court Fees and Suits Valuation Act.

8. The Civil Revision Petition fails and isdismissed with costs.


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