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Damacharla Venkata Seshaiah Vs. Damacharla Venkayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAndhra Pradesh High Court
Decided On
Case NumberL.P. Appeal No. 110 of 1972
Judge
Reported inAIR1974AP193
ActsSpecific Relief Act, 1877 - Sections 22 and 22(2); Specific Relief Act, 1963 - Sections 19
AppellantDamacharla Venkata Seshaiah
RespondentDamacharla Venkayya and ors.
Appellant AdvocateV. Lakshmi Devi, ;K. Ranga Rao and ;M. Venkateswarlu, Advs.
Respondent AdvocateN. Bapi Raju, Adv.
Excerpt:
property - specific performance - sections 22 and 22 (2) of specific relief act, 1877 and section 19 of specific relief act, 1963 - sale contract entered between plaintiff and defendant no. 1 for sale of property to plaintiff - portion of property sold to defendant no. 2 by defendant no. 1 - suit by plaintiff for specific performance of contract - defendant no. 2 had knowledge of sale contract between plaintiff and defendant no. 1 - defendant no. 2 was not bonafide purchaser - no evidence produced by defendant no. 2 to show improvement in property made by him - held, plaintiff entitled for specific performance. - - 5. since the ist defendant had some difficulties in executing the sale deed, he endorsed the agreement exhibit a-2 on 14-4-1961 extending the time to two months. the.....gopal rao ekbote, c.j.1. this appeal is from the judgment of our learned brother m. krishna rao, j. given in appeal nos. 368 and 443 of 1968 and memorandum of cross objections and 26-3-1971.2. the plaintiff-appellant instituted o. s. no. 71 of 1961 for specific performance of an agreement to sell executed on 7-4-1961. the averments were that originally s. no. 16/1 situate in east naidupalem belonged to the deity kodandaramaswami, whose temple is at ongole. there was litigation between the trustees of the temple and the ist defendant who was claiming occupancy rights. the litigation, however, ended in negating the claim set up by the ist defendant. the ist defendant, however, continued in possession. the trustees of the temple and the ist defendant on approval of the government entered.....
Judgment:

Gopal Rao Ekbote, C.J.

1. This appeal is from the judgment of our learned brother M. Krishna Rao, J. given in Appeal Nos. 368 and 443 of 1968 and Memorandum of Cross Objections and 26-3-1971.

2. The plaintiff-appellant instituted O. S. No. 71 of 1961 for specific performance of an agreement to sell executed on 7-4-1961. The averments were that originally S. No. 16/1 situate in East Naidupalem belonged to the deity Kodandaramaswami, whose temple is at Ongole. There was litigation between the trustees of the temple and the Ist defendant who was claiming occupancy rights. The litigation, however, ended in negating the claim set up by the Ist defendant. The Ist defendant, however, continued in possession. The trustees of the Temple and the Ist defendant on approval of the Government entered into a sale deed executed by the trustees in favour of the Ist defendant on 7-4-1961.

3. The Ist defendant borrowed Rs. 2,000/- from the planitff in order to meet his requirements regarding payment of consideration to the trustees. The amount later on was paid to the plaintiff.

4. The Ist defendant entered into a contract for sale which the plaintiff on 7-4-1961 agreeing to sell 10 kuntas of the said property at the rate of Rs. 1100/- per kunta (Exhibit A-1). The sale deed was agreed to be executed within one week of the agreement.

5. Since the Ist defendant had some difficulties in executing the sale deed, he endorsed the agreement Exhibit A-2 on 14-4-1961 extending the time to two months.

6. A counterpart of the agreement was executed by the plaintiff and was left with the Ist defendant.

7. The plaintiff was always willing and ready to perform his part of contract, but the Ist defendant put it off on some pretext.

8. The plaintiff, however, came to know one month before the suit that the Ist defendant has entered into contracts for sale in respect of some portions of the land. He therefore insisted on the Ist defendant to complete the sale deed. It is then that Ist defendant disclosed that he sold 4 kuntas of the suit property to the 2nd defendant on 12-7-1959 (Ex. B-9).

9. He also came to know thereafter that the Ist defendant has entered into an agreement to sell 6 kuntas of suit property in favour of 3rd defendant on 17-4-1961 (Exhibit B-13).

10. On 19-10-1961 the plaintiff therefore gave notice Exhibit A-3 to the Ist and 2nd defendants asking for specific performance of the contract.

11. The Ist defendants by Exhibit A-6 dated 10-11-1961 gave reply. He denied the execution of contract of sale in favour of the plaintiff or any endorsement on such agreement. The 2nd defendant also gave reply by Exhibit A-7 on 19-11-1961 on somewhat the same lines as Ist defendant.

12. The plaintiff as a result instituted the present suit against the three defendants on 5-12-1961.

13. The principal defense set up by the defendants was that the Ist defendant was that the Ist defendant had not entered into any agreement to sell the land to the plaintiff. Exhibits A-1 and A-2 were not executed by the 1st defendant. They are rank forgeries, 1st defendant further stated that he has sold 4 kuntas to 2nd defendant and agreed to sell 6 kuntas to 3rd defendant. It was further alleged that the 1st defendant had executed an agreement (Exhibit B-9) in favour of 2nd defendant as long back as 12-7-1959 and in pursuance of the same the sale deed was executed on 17-4-1961 (Exhibit B-10). Possession was already given to defendants 2 and 3 on the dates of their agreements.

14. It was alleged by the 2nd defendant that he put a barbed wire and fenced the whole compound. He also constructed a pucca godown. He thus spent Rs. 20,000/- to Rs. 25,000/- on the improvement of property.

15. Likewise the 3rd defendant also alleged that he constructed a barn and improved the property by spending about Rs. 6,000/-.

16. On these pleadings the trial Court framed in all seven issues.

17. The plaintiff examined seven witnesses including himself. The defendants examined nine witnesses including themselves. The parties marked several documents and some documents were marked on behalf of the witnesses. A Commissioner was appointed at the instance of the plaintiff to report about the existing state of affairs on the land in question.

18. Upon this material , the trial Judge held that the contract of sale dated 7-4-1961 and the endorsement by way of modification thereof dated 14-4-1961 executed by the 1st defendant in favour of the plaintiff are true and genuine . He therefore found issue 1 in favour of the plaintiff.

19. The trial Court further held that the contract of sale dated 12-7-1959 alleged to have been executed by the 1st defendant in favour of 2nd defendant (Exhibit B-9) was not a genuine document and that it was brought into existence by antedating it although it seems to have been brought into existence at or about the time of the execution of Exhibit B-10.

20. It was also held that Exhibit B-9 was not executed on the strength of an agreement which the 1st defendant is alleged to have executed in favour of the trustees in 1956.

21. The trial Court further found that Exhibit B-10 was also not bona fide document. It reached the conclusion that both Exhibits B-9 and B-10 are not valid documents. Fictitious recitals were introduced in Exhibit B-10. Moreover 2nd defendant was not a bona fide purchaser for consideration without notice of Exhibits A-1 and A-2. Consequently the trial Court held issue No. 2 against defendants 1 and 2 and found that Exhibits B-9 and B-10 are not binding upon the plaintiff.

22. In regard to issue No. 3 , which related to the contract of sale with 3rd defendant, the learned trial Judge held that Exhibits B-13 and B-14 came into existence subsequent to Exhibit A-1. No registered sale deed as yet is executed. These documents are true but are not binding.

23. The trial Judge then considered issues 4 and 5 together. It was held that the plaintiff did not pursue his claim diligently and on the other hand it looks as though he deliberately allowed time to lapse so that in the meanwhile defendants 2 and 3 might proceed with their constructions. Hence by his own nondiligence the plaintiff has disentitled himself to the equitable relief of specific performance. He is entitled to be paid only the compensation for breach of contract. As a result, the trial Court dismissed the suit for specific performance and possession, but granted a decree against the 1st defendant for Rs. 6,000/- by way of compensation.

24. Aggrieved by the judgment of the trial Court, the 1st defendant preferred Appeal No. 368 of 1968. The 2nd and 3rd defendants filed cross objections on the plaintiff's appeal. All these cases were heard together. The learned Judge dismissed the appeals of the 1st defendant as well as the plaintiff. The cross-objections also were dismissed.

25. The learned Judge agreed with the view of the trial Court that Exhibits A-1 and A-2 executed by the 1st defendant in favour of the plaintiff are true. He also agreed with the view of the trial Court that in view of the conduct of the plaintiff, the trial Court was justified in holding that he is not entitled to the discretionary relief of specific performance which would operate to the detriment of defendants 2 and 3. The learned Judge felt it unnecessary to consider whether the subsequent alienees, defendants 2 and 3 are bona fide purchasers for value. He observed that 'as the plaintiff is not entitled to a decree for specific performance, defendants 2 and 3 will be entitled to continue in possession.'

26. In this appeal Miss V. Lakshmi Devi the learned Counsel for plaintiff appellant , naturally attacked the concurrent view of the two Courts that the plaintiff is not entitled to the discretionary relief of specific performance as all the other issues were decided by the trial Court in favour of the plaintiff and partly agreed to by the learned single Judge.

27. Now , Section 22 of the old Specific Relief Act which , it is agreed, is applicable to this case, lays down at the outset that the jurisdiction to decree specific performance is discretionary. It then sets out the nature of such discretion. It says that the Court is not bound to grant such relief merely because it is lawful to do so. Such a discretion however is not to be arbitrarily exercised. It must be sound and reasonable and guided by judicial principles. Such exercise of discretion is capable of correction by a Court of appeal. The section then specifies in three successive paragraphs circumstances under which the first two of which the Court may properly exercise a discretion not to decree specific performance, whilst under the third , it may appropriately give a decree. It is however plain that the circumstances stated in the said three provisions are merely illustrative of the general principle embodied in the first paragraph of the section and are not intended to be exhaustive. It is well settles that it would neither be possible nor desirable to lay down any hard and fast rules regarding the principles on which discretion can be exercised. Nor it is possible to exhaustively define the circumstances in which the equitable relief could or could not be granted.

28. It is well to remember that there is a presumption that specific performance is the proper remedy on a contract to convey immovable property. Usually specific performance is allowed in case of immovable property. But such a presumption is not absolute and is liable to be rebutted. No one can claim this equitable relief as a matter of right. Nor the Court would grant it as a matter of course. Each case has to be considered in the light of its own facts and circumstances.

29. One of the grounds on which this equitable relief sometimes is denied is delay. Where delay which does not act as a bar under any statute of limitation has been pleaded as a defence, its validity has necessarily to be tried on principles substantially equitable.

30. In order to consider such a plea in defence , the pleading in that behalf must expressly state the facts necessary for making out a defence on the ground of delay.

31. We have referred to some of the principles stated in Section 22 which have to be kept in view while considering the grant or refusal of this equitable relief. It may, however, be noted that laches or waiver is not one of the grounds mentioned in Section 22 as disentitling the plaintiff to specific performance. But in the exercise of the discretion the conduct of the plaintiff also is to be considered. If the delay is caused in taking suitable action which amounts to laches or waiver on the part of the plaintiff he would not be entitled to the equitable relief.

32. Now the doctrine of laches is not an arbitrary or technical doctrine. It is only where it would be practically unjust to give a remedy either because the party has by its conduct done that which might fully be regarded as equivalent to waiver of it or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him, that the lapse of time or delay would be most material. In all other cases, where immovable property is concerned , ordinarily the relief should be granted.

33. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval which might affect either party, and cause a balance of justice or injustice in taking the one course or other, so far as it relates to the remedy. In other words, delay has two aspects. It may lead to a change in the thing sold or it may imply acquiescence so as to bar a plaintiff's remedy. It is very important to keep these two things separate when the consequences of delay have to be considered in a given case.

34. The Supreme Court in Satyanaraya v. Yelloji Rao, : [1965]2SCR221 may say so with respect, tersely put the law as follows :

'The result of the aforesaid discussion of the case law may be briefly stated thus : While in England mere delay or laches may be a ground for refusing to give a relief of specific performance in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. But as in England so in India proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression 'Waiver' in its legally accepted sense, namely 'waiver is contractual, and may constitute a cause of action: it is an agreement to release or not to assert a right': see Dawson's Bank Ltd v. Nippon Menkwa Kabushika Kaisha, 62 Ind App. 100 at p. 108 = (AIR 1935 PC 79 at p. 82) It is not possible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be equitable to give him such a relief.'

35. In Yellogi Rao v. Satyanarayana, (1964) 1 An WR 312, a Bench of this Court was concerned with similar set of facts and the question of law relating thereto. Their Lordships held that contracts relating to immovable property, where time is not of the essence of the contract, mere delay with nothing more cannot prejudice the claim. It is necessary to note the length of delay and the nature of the acts done during the interval and motive behind both. If the delay was not unreasonable and if the acts done during the interval resulting in the change of circumstances are far from being honest , the plaintiff's claim cannot be prejudiced.

36. In that case it was found that :

'Even though on the evidence it is clear that the change in the status quo ante has flown from the plaintiff's word, deed or inaction, but is attributable to the rash act of the defendant who was not at all bona fide in raising the structure. There was no occasion for the court below to exercise discretion in favour of the defendant. If the change in circumstances did bring any hardship on the defendant, it is his self induced hardship and since he has taken his chances to build he must take the risk of its being pulled down.'

37. The following decisions of this Court are also to the same effect : Butchiraju v. Sri Ranga Satyanarayana, AIR 1967 Andh Pra 69, T. Venkata Subhramanyam v. Viswanadharaju, : AIR1968AP190 and M. A. H. Khan v. A. M. Khadri, : AIR1972AP178 . It is in the background of these principles that we have to examine whether the two courts were right in declining the equitable relief to the plaintiff.

38. In the written statement of the defendants neither delay or laches on the part of the plaintiff has been pleaded. No special circumstances are indicated showing the conduct of the plaintiff on the basis of which it could be said that he was guilty of waiver or acquiescence. Nor there is anything to show that defendants 2 and 3 were induced to a belief that the plaintiff is not interested in his claim and therefore they carried on the constructions as alleged by them. What all is observed is that :

'after obtaining the sale deed this defendant (2nd defendant) began the construction of a pucca godown in the extent purchased by him. The said construction was completed and this defendant spent more than Rs. 25,000/- for it. The 3rd defendant has since constructed two fleue tobacco barns in the site purchased by him.'

No details of construction or details of expenses are given more important than that is that it is shown as to when the construction were started and when they ended.

39. It will thus be plain that no foundation was laid in the written statements for holding that the plaintiff had waived his right or acted in a way which induced the defendants to carry on the constructions.

40. Issue No. 4 was whether the plaintiff is entitled to specific performance . This general issue may imply that the plaintiff would not be entitled if he has waived his right. But there are no pleadings to that effect.

41. The trial Court in a short paragraph 38 observed that the construction was commenced soon after Exhibit B-10 and seems to have dragged on for several months and appears to have been over only by about February, 1962. Though defendants 2 and 3 commenced construction, the plaintiff did not immediately take any objection nor did he complain to the elders in the village. Further though the plaintiff received Exhibits A-6 and A-7 in early November, 1961 the suit was filed only on 5-12-1961.

42. The learned trial Judge then pointed out as to how the plaintiff was not diligent in prosecuting his application filed for injunction.

43. It is only upon these grounds that the trial Court has held that by his own non-diligence the plaintiff has disentitled himself to the equitable relief.

44. The question therefore is whether these findings are sufficient in law to disentitle the plaintiff to the relief. We do not think that even if these findings are taken to be correct, the exercise of the discretion against the plaintiff would be justified.

45. It is pertinent to note that the trial Court has expressly found that the agreement of sale as well as the sale deed were invalid and defendant 2 was responsible for bringing into existence an antedated agreement to sell as well as of false insertions in the sale deed. It was also held that defendants 2 and 3 are not bona fide purchasers with consideration and without notice of the agreement to sell in favour of the plaintiff by 1st defendant. In the face of this categorical finding, we fail to see how it would be just and fair to exercise any discretion in favour of defendants 2 and 3 and against the plaintiff. When these defendants purchased or agreed to purchase the property with full knowledge of Exhibits A-1 and A-2 and carried on the construction, we are unable to comprehend how they can ask the court to exercise the discretion in their favour.

46. Section 20(2)(b) was sought to be relied upon by the learned advocate for the defendants in support of his contention that the performance of the contract would involve great hardship to defendants 2 and 3 since they have expended considerable amount in improving the property.

47. No doubt clause (b) of Section 20(2) says that where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff.

48. In order to attract this provision , it must firstly involve some hardship on the defendant. It is however, necessary to bear in mind that such a hardship the defendant must not have foreseen. And secondly that non-performance would involve no such hardship to the plaintiff.

49. When the defendants knew well that there is a prior agreement in plaintiff's favour , how can it be said that the hardship is the creation of the plaintiff. We have already seen that in (1964) 1 An WR 312, it is held that if the change of circumstances are brought about by defendants which changes are far from being honest, the plaintiff cannot be denied his claim. Since the defendants have taken a chance of running up construction to defeat the plaintiff's claim, they must take the chance of pulling them down.

50. In Haradhan Debnath v. Bhagabati Dasi, ILR 41 Cal 852 = (AIR 1914 Cal 137) a Bench of the Calcutta High Court was concerned with similar circumstances. The Court observed :

'The subsequent transferee entered into an agreement to purchase the property with full knowledge of this prior agreement. He cannot consequently claim to be a bona fide purchaser for value without notice and the plaintiff is entitled to have the contract specifically enforced not only against the vendor but also against the transferee.'

51. It was argued before that court that there was delay in the institution of the suit and before its commencement the transferee had spent money for improvement of the property and therefore the plaintiff should not be allowed specific performance. The court rejected that contention.

52. It was also contended there that specific performance should be refused because in the terms of Section 22(2) of the Act the performance of the contract would involve hardship on the purchaser-defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff. Rejecting that contention, the court said:

'This clause clearly contemplates a case in which the vendor has entered into a contract without full knowledge of the circumstances ..................... But where the hardship has been brought upon the defendant by himself , the court will not consider that as a circumstance in favour of the refusal of specific performance.'

Their Lordships further said that :--

'The position of the defendant who has taken with notice of the prior contract and who has omitted to make and effective enquiry from the plaintiff is no better than that of the vendor himself, and, so far as the vendor is concerned, it is clear that if he makes permanent improvements the purchaser would be entitled to the benefit thereof without further payment....................... The defendants consequently have not established any right to be reimbursed for the improvement made on the property.'

In : AIR1968AP190 one of us (Hon'ble the Chief Justice) Similarly held :

'When both the courts below have found that the 2nd defendant was not a bona fide purchaser without notice and was aware of all the facts of the case, it was not possible to exercise the discretion in favour of such a person. The intervening interest which was brought into existence was deliberate and knowing fully that there exists an agreement in favour of the plaintiff which was not determined and that the contract was alive.' Respectfully following the said decisions, we have no difficulty in holding that the defendants with full knowledge of agreement Exhibits A-1 and A-2 carried on the construction. The injury or hardship, if any, was self-inflicted. The defendants cannot set up their own wrong against the plaintiff to defeat his claim. No discretion therefore in such a case can be exercised in favour of the defendants and against the plaintiff.

53. Both the Courts unfortunately have completely missed this very important aspect of the case. Otherwise the trial Court would not have found on one hand that defendants 2 and 3 are not bona fide purchasers with value and without notice and on the other refused to exercise the discretion in favour of the plaintiff. Nor the learned single Judge, without considering the question whether defendants 2 and 3 are bona fide purchasers would have exercised the discretion in favour of defendants 2 and 3 , who were found by the trial court not to be bona fide purchasers. The learned Judge did not upset the finding of the trial Court in that regard.

54. We go back then to the question whether the finding of the trial Court justify in law or in fact the refusal to exercise the discretion in favour of the plaintiff.

55. In view of the position of law discussed above, it cannot be in doubt that unless it is found that there has been such a delay on the part of the plaintiff or his conduct was such which induced the defendants to carry on improvements in the property, the plaintiff cannot be deprived of his right. Neither there was any pleading nor any finding in that behalf. The argument that the plaintiff did not immediately take any objection although he knew about the beginning of the construction as he lives opposite to the suit site is neither correct in the point of fact nor omission to object amount waiver or acquiescence of his claim or offering inducement to defendants who were aware of Exhibits A-1 and A-2 to carry on the construction. The tests laid down as above are not satisfied in the instant case so as to disentitle the plaintiff.

56. It is already seen that Exhibit A-1 is of 7-4-1961 and Ex. A-2 is of 14-4-1961. The notice A-3 was given on 19-10-1961. The notice apart from the knowledge of Exhibit A-1 ought to have put the defendants on guard. They did not make any enquiries. The 2nd defendant's sale deed is dated 17-4-61 (Exhibit B-10). The finding of the trial Court is that soon after Exhibit B-10, the construction commenced and dragged on and was over by February, 1962. Thus it is not found as to when exactly the construction commenced. Exhibits X-1, X-2, X-3, X-4 and X-6 are of August , 1961. We have already noted that the written statements do not show as to when the construction commenced.

57. The 1st defendant stated that four or five days after Exhibit B-10, 2nd defendant started construction. He denied the suggestion that the construction commenced six months after Exhibit B-10. He, however admitted that the construction was completed in six or seven months.

58. D.W. 6 is the 2nd defendant . He stated that about 10 or 15 days after Ex. B-10 he started the construction. It was completed in six or seven months.

59. D. W. 9 is the 3rd defendant. He stated that the construction of his barns was completed in about 2 months and in August , 1961. He could not say as to when 2nd defendant's godown was completed.

60. D.W. 5 no doubt said that 2nd defendant started construction of a godown about 10 or 15 days after Ex. B-10 and completed in six months, but he is the resident of another village and is interested in 2nd defendant as he is his relative.

61. Ex. A-3, the notice of the plaintiff mentioned that when he asked the 2nd defendant about his sale without giving proper reply he has been putting up temporary walls on western side since about a week, that is to say about 12-10-1961.

62. Exhibit A-6 is a reply by 1st defendant which makes reference to the construction on the same lines as Exhibit A-7.

63. Exhibit A-7 is the reply notice given by 2nd defendant on 19-11-1961. exactly one month after Exhibit A-3. In this reply very strangely 2nd defendant alleges to have constructed the godown after 1959 agreement and before the sale deed Exhibit B-10. In any case there is no date given as to when construction commenced. There are no details of the godown and no reference of any other construction.

64. If the evidence of defendants 2 and 3 and of D.W. 9 is read along with Exhibits A-6 and A-7 and the evidence of D.W.'s 4, 7 and 8 in support of some the documents, it is difficult to believe that these defendants really commenced their constructions within 15 days of Exhibit B-10. The purchase of material under Exhibits X-1 to X-6 shows that it was purchased only in July and August, 1961. Most of the material seems to have been purchased only in August, 1961. The plaintiff's evidence that the constructions were commenced about six months after Exhibits A-1 and A-2 seems to us to be correct. When the material was admittedly purchased in August, 1961, the construction must have started thereafter. The finding of the Trial Court therefore that the constructions were completed by about February, 1962 is correct because even the defendants say that the constructions were completed within six or seven months from their commencement.

65. What is plain therefore is that in spite of the knowledge of Exhibits A-1 and A-2 , the constructions were commenced somewhere in September, 1961 and in spite of Exhibit A-3 dated 19-10-1961 the notice of the plaintiff the constructions continued. Not only that but the suit was laid soon on 5-12-1961. Even after its institution the construction was continued and was over in February, 1962.

66. It is pertinent to note that defendants 2 and 3 have not maintained any accounts of constructions. Nor have they produced any account of the constructions. More important than that is that they have not produced any permission of a local body to construct the godown, the barns etc. Such a permission would have disclosed as to when the construction really commenced. It would not therefore be unreasonable to infer that all these constructions were carried on either without permission or were carried out only after or about the time when notice Exhibit A-3 was given by the plaintiff to them. It is also interesting to know that some of the articles were purchased in the name of Gaddam Kathayya although the bill seems to have been signed by the 2nd defendant. The original bills have not been produced. Their loss is alleged but not satisfactorily proved. The material got on quota could have been easily proved by producing the papers relating thereto. They were not produced. The 2nd defendant categorically stated that 'There are no accounts now relating to the construction of the godown. But all the bills are available.' In the same breath he subsequently said 'I got them by quota. That bills file lost.' It is difficult to believe such statement. He was also not able to say what price he paid for purchasing the quota material. The bills are stated to have been lost in the auditor's office. The auditor was not examined. Gaddam Kathayya also has not been examined. In these circumstances it is difficult to accept the evidence of the defendants 2 and 3 that they commenced construction within 15 days of Exhibit B-10. They started the construction fully knowing the plaintiff's right an insisted on continuing it even after notice and completed the construction long after the suit was laid. We fail to see how in these circumstances it can be said that the plaintiff was guilty of negligence or laches or there has been delay in claiming the right to the plaintiff's conduct was such that the defendants were induced to carry on the constructions. The defendants have to blame themselves if they are now required to pull them down. It would be very unfair and unjust and against the principles of law to exercise the discretion in favour of the defendants and deny plaintiff his right.

67. We are not at all impressed with all that is stated by the two Courts in regard to the prosecution of the petition for interim injection filed by the plaintiff in the suit. In the circumstances mentioned above, even if it is assumed that there was some lack of diligence on the part of the plaintiff in promptly prosecuting the petition, we fail to see how that could disentitle the plaintiff, particularly when the defendants were aware of the entire situation. We are satisfied that the plaintiff was not guilty of laches nor there was any delay on his part in setting up his claim. He enquired of 2nd defendant but without giving any proper reply and with full knowledge 2nd defendant commenced the construction. There is therefore nothing on the basis of which the plaintiff can be denied the specific performance of the immovable property.

68. The learned advocate for the defendants naturally was compelled to dispute the findings of the trial Court regarding the agreement Exhibit B-9 and sale deed Exhibit B-10 executed by the 1st defendant in favour of 2nd defendant. The learned single Judge considered it unnecessary to go into the question . We therefore heard the learned Advocates fully on this question as well as on the question relating to Exhibit B-13 in favour of 3rd defendants. After going through the evidence which was read out to us and considering carefully the reasons given by the trial court in support of its conclusions, we are inclined to wholly agree with the view taken by the trial Court. Exhibit B-9 is clearly a subsequently brought out document. On the date on which it is alleged to have been executed, even 1st defendant had no title to enter into any agreement. It is on a plain paper. No reason is shown why it could not be executed on a stamp paper. The contention that there was an agreement between the trustees and the 1st defendant was in our view rightly rejected.

69. The 2nd defendant had filed a petition under Order 41 Rule 27 C.P.C. before the learned Judge seeking to produce additional documentary evidence . The learned Judge dismissed the application without considering it on merits. No fresh application was made to us. Even otherwise we can find no valid reason to allow fresh evidence at this stage particularly when the certified copy of the agreement is a disputed document. There are no reasons to start a fresh enquiry at this stage. No grounds under Order 41 Rule 27 C.P.C. are made out. We would therefore reject the request.

70. Even otherwise the so-called agreement is not executed by the trustees in favour of the 1st defendant. It is difficult to characterise it as an agreement to sell temple property. Firstly the Trustees were not competent to sell as no sanction was obtained by them from the Government. Secondly, the agreement is executed by 1st defendant in favour of the trustee and not vice versa. The trustees have not even signed this agreement. It was more or less an offer of purchase made by the 1st defendant to the Temple and nothing more. It would be an abuse to call that an agreement to sell temple lands executed by the trustees in favour of the 1st defendant on the basis of which he could have executed Exhibit B-9.

71. Moreover, the so-called agreement shows that it was written in 1956 whereas the evidence shows that an agreement was entered into only in 1958.

72. It is also quite relevant to mention that Exhibit B-9 was produced into Court only on 5-8-1965. It may be that there is a reference to the date of agreement in Exhibit B-10. But no explanation was offered as to why it was withheld from the Court so long. For these and other reasons given by the trial Court , we are satisfied that Exhibit B-9 is not a genuine document and that it was brought into existence at about the time when Exhibit B-10 came into existence.

73. We also agree with the view of the trial Court that in Exhibit B-10 fictitious insertions were made. The appreciation of the evidence made by the trial Court seems to us quite correct and we entirely agree with the reasoning and conclusion of the trial Court in regard to Exhibits B-9 and B-10. These documents are not binding upon the plaintiff . Exhibit B-10 has been brought into existence with full knowledge of Exhibits A-1 and A-2. We agree with the trial Court that 2nd defendant is not a bona fide purchaser without notice of Exhibits A-1 and A-2. Under Section 19(b) of the Specific Relief Act therefore, the plaintiff can be given relief even against 2nd defendant.

74. No sale deed has so far been executed in favour of 3rd defendant. He entered into an agreement (Exhibit B-13) with full knowledge of Exhibits A-1 and A-2. Specific performance therefore can also be granted against 3rd defendants.

75. No arguments were advanced to show that the plaintiff was not ready or willing to perform his part of contract. In fact the defendants took an extreme but false defence that Exhibits A-1 and A-2 are rank forgeries which they could not sustain.

The 2nd defendants claims to have spent Rs. 20,000/- for his construction. Whereas the 3rd defendant claims to have spent about Rs. 6,000/- . We have noticed that no accounts have been filed. No details of constructions are available. Original bills are not produced. The commissioner being a layman his valuation can carry very little weight. Moreover, he has not given measurement or shown the nature of construction in his report. The construction mostly seems to be brick in mud. The oral evidence of layman in that behalf is also not of much use. The plaintiff says that the 2nd defendant must not have spent more than Rs. 6,000/-. It is difficult on this meager evidence to reach any precise conclusion. But we are satisfied that the 2nd and 3rd defendants have not made out their claims that they have spent Rs. 20,000/- and Rs. 6,000/- respectively.

76. Since no other argument was advanced and for the reasons which we have given, we would allow the appeal, set aside the judgment under appeal as well as that of the trial Court and decree the plaintiff's suit. The plaintiff would get his costs throughout.

77. Appeal allowed.


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