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Budda Veeraiah and ors. Vs. K. Lakshminarasimha Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 32 of 1978
Judge
Reported inAIR1982AP380
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 33
AppellantBudda Veeraiah and ors.
RespondentK. Lakshminarasimha Reddy and ors.
Appellant AdvocateY. Sivarama Sastry, Adv.
Respondent AdvocateO. Adinarayana Reddy and ;M. Venkatarama Reddy, Advs.
Excerpt:
.....consideration at time of registration - trial court held the agreement to be bogus and sham - on appeal single judge bench ordered refund of rs. 7000 - relief of specific performance not granted - contention that refund order cannot be interfered with when defendant never preferred appeal or cross objection against said order - contention rejected - appellate court under order 41 rule 33 empowered to do justice by granting relief to party who has not appealed - agreement not genuine - plaintiff failed to establish any payment of money - order of refund quashed even though defendant preferred no appeal against it. - - a-1 is not a true or a genuine-document and that the plaintiffs had failed to establish that a sum of rs. 33 no doubt is discretionary and has to be normally..........seeking the relief of specific performance. so far as the compromise ex. a-10 is concerned the learned judge held that it was only a circumstantial piece of evidence to show that the 1st defendant agreed to sell the lands to the plaintiffs, but the suit itself was not based upon the compromise and was based only on ex. a-1 and that therefore, the said compromise ex. a-10 would not help the case of plaintiffs. on those findings, the learned subordinate judge dismissed the suit with costs.8. on appeal, our learned brother raghuvir, j. held that the facts disclosed that the 1st defendant agreed to convey his land covered by ex. a-1 to the plaintiffs. the learned judge compared the disputed signatures of the 1st defendant in ex. a-1 with the admitted signatures of the 1st defendant in.....
Judgment:

Ramachandra Rao, J.

1. The plaintiffs are the appellants in this Letters Patent Appeal preferred against the judgment of our learned brother Raguvir J.

2. The plaintiffs-appellants filed the suit for specific performance of an agreement to sell, Ex. A-1 dated 14-12-1968 alleged to have been executed by the 1st defendant Muthineni Pedda Ramaiah under which the 1st defendant is alleged to have agreed to sell half share in Ac. 30-27 guntas covered by S. Nos. 209, 214 and 215 situate in Jalalpuram, Suryapet Taluk Nalgonda district to the plaintiffs for a consideration of Rs. 9.200/-. The father of the 1st defendant had taken the father of the plaintiffs as illatom son-in-law about 50 years prior to the institution of the suit, and plaintiff's father was given a half share in the suit properties mentioned above, keeping himself the other half share. On the death of their father the plaintiffs inherited his half share while the defendant No. 1 inherited from his father the remaining half share. The properties were divided by metes and bounds between the plaintiffs and defendant No. 1 and they were in possession and enjoyment of their respective shares. While so, the defendant No. 1 sold to the defendants 2 and 3 under a registered sale deed, Ex. B. 1 dated 12-1-1968, the entire properties including the plaintiffs' share. Thereafter, the 1st defendant filed an application before the Tahsildar, Suryapet under Section 47 of the Andhra Pradesh (Telengana Area) Tenancy and Agriculture Lands Act before the Tahsildar for permission to alienate the said land to defendants 2 and 3. The Plaintiffs came to know of the said proceedings on 31-1-1968 and filed objections before the Tahsildar objecting to the grant of permission for the sale of their half shares. While so, on the intervention of some elders. D. Was. 2,. 3 and 4 a compromise was entered into under which the plaintiffs were recognised as the owners of the half share in the said lands and the 1st defendant agreed to sell his half share to the plaintiffs and this compromise was filed as Ex. A-10 dated 27-9-1968, the original of which is Ex. A-11 and the Tahsildar by order Ex. A-8 Dt. 15-11-1968 recorded the compromise and accorded permission to the 1st defendant to alienate his half share in favour of the plaintiffs. It is alleged that pursuant to the said compromise the 1st defendant is alleged to have executed the suit agreement. Ex. A-1 dated 14-12-1968 agreeing to sell his half share in the lands in favour of the plaintiffs for Rs. 9,200/-. The case of the plaintiffs is that on the very day, they paid a sum of Rs. 7000/- to the 1st defendant and agreed to pay the balance of sale consideration at the time of registration. The plaintiffs stated that they were ready and willing to perform their part of the contract, but the defendant No. 1 did not come forward to execute the sale deed. It is also alleged that on 8-1-1971 the defendants tried to trespass upon the portion of the land agreed to be sold by the 1st defendant and the plaintiffs intervened and prevented the treapass. Thereafter, the plaintiffs filed the suit for specific performance of the agreement to sell, or in the alternative, for payment of compensation.

3. The 1st defendant filed a written statement denying the Illatom adoption of the plaintiffs' father and also denying the execution of the suit agreement Ex. A-1. He alleged that the plaintiffs had no manner of right, title or interest in the suit lands, and that the entire land belonged to him as his ancestral property. He also denied the compromise alleged to have been entered into before the Tahsildar. He stated that he had sold the lands to defendants 2 and 3 for rupees 24,000/- and that he had no longer any subsisting interest in the said lands. He alleged that the defendants 2 and 3 yielded to the pressure and influence of the Patwari and Konareddy and agreed to sell the lands to the plaintiffs for Rs. 24,000/-. The contents of the compromise petition were also denied. The suit agreement is alleged to be a rank forgery. The payment of Rs. 7000/- by the Plaintiffs to the 1st defendant in pursuance of the alleged agreement Ex. A-1 was also denied and it is alleged that the said agreement was brought into existence with the connivance of Konareddy, Ketireddy Venkat Reddy and one Dachepalli Narasayya. The defendants 2 and 3 filed a separate written statement supporting the averments made by the 1st defendant.

4. On the aforesaid pleadings, the following issues were framed:

(1) Whether the 1st defendant had executed the sale agreement dated 14-12-1968 in favour of the plaintiffs and if so what is its effect?

(2) Whether the suit is maintainable without asking for the cancellation of the sale deed made in favour of defendants 2 and 3 by the first defendant on 12-1-1968?

(3) What is the effect of the compromise terms filed before the Tahsildar. Suryapet and the effect of other proceedings before the said court covered by C2/3763/67?

(4) Whether the plaintiffs are entitled to the grant of compensation under Sections 21 and 22 of the Specific Relief Act?

(5) To what relief parties are entitled?

5. The plaintiffs examined the scribe of Ex. A-1 as P. W. 1 the attestors of Ex. A. 1 as P. Was. 2 and 3, and the Clerk of the Tahsildar's office as P. W. 4 the Patwari as P. W. 5 and the 1st plaintiff examined himself as P. W. 6.

6. During the pendency of the suit, the 1st defendant died and his wife was brought on record as the fourth defendant. She examined herself as D. W. 1. The alleged mediators are examined as D. Was. 2 to 4 and the 3rd defendant examined himself as D. W. 5. Exs. A-1 to A 15 were filed for the plaintiffs and B. 1 and B. 2 for the defendants.

7. On a consideration of the evidence, the trial court came to the conclusion that the alleged signatures of the 1st defendant in Ex. A-1 did not at all tally with the admitted signatures of the 1st defendant and that the evidence of the scribe and the attestors showed that P. W. 1 could not have written the document by himself, and that it must have been copied from some other document, and that the scribe did not know how to write quickly, and that too without the dictation by somebody he could not have mentioned various details of the relationship of the parties and the particulars of the properties in the document Ex. A-1 and taking all the circumstances into consideration and comparing the signatures in Ex. A-1 with the admitted signatures of the 1st defendant, he held that Ex. A-1 was not a true document, and that it must have been fabricated by copying from a draft prepared by an Advocate. On issue No. 2 he held that it was not necessary to go into the question whether the suit was maintainable without asking for cancellation of the sale deed Ex. B-1 executed by defendants 2 and 3 in favour of the 1st defendant, and that even otherwise, as the said sale deed was registered one, the plaintiffs should have sought the cancellation of the sale deed while seeking the relief of specific performance. So far as the compromise Ex. A-10 is concerned the learned Judge held that it was only a circumstantial piece of evidence to show that the 1st defendant agreed to sell the lands to the plaintiffs, but the suit itself was not based upon the compromise and was based only on Ex. A-1 and that therefore, the said compromise Ex. A-10 would not help the case of plaintiffs. On those findings, the learned Subordinate Judge dismissed the suit with costs.

8. On appeal, our learned brother Raghuvir, J. Held that the facts disclosed that the 1st defendant agreed to convey his land covered by Ex. A-1 to the plaintiffs. The learned Judge compared the disputed signatures of the 1st defendant in Ex. A-1 with the admitted signatures of the 1st defendant in the written statement and observed that he was not in a position to agree with the conclusion reached by the trial court, and that broadly the two signatures looked similar to the naked eye and, therefore he was of the view that Ex. A-1 was not forged. However the learned Judge held that the plaintiffs could not be given the relief of specific performance, as the plaintiffs did not seek cancellation of the registered sale deed Ex. B-1. A contention was raised that Ex. B. 1 was void for want of permission under Section 47 of the Act. But, as such a plea was not raised in the lower court and no issue framed, the learned Judge held that the said question could not be decided as a pure question of law. In view of the finding reached by him that Ex. A-1 was true and in view of the recital in Ex. A-1 that the amount of Rs. 7000/- was paid by the plaintiffs to the 1st defendant, the learned Judge directed that the 1st defendant should refund to the plaintiffs the aforesaid amount of Rs. 7000/- with interest at 6% per annum from the date of suit till the date of realisation. Accordingly, the learned Judge allowed the appeal to the extent mentioned above and dismissed the suit in other respects.

9. In this appeal, it is contended by Sri. Y. Siva Rama Sastry, the learned counsel for the plaintiffs-appellants that the learned single Judge having held that Ex. A-1 was true, should have granted the relief of specific performance and not merely the refund of Rs. 7000/-. On the other hand, it is contended by Sri. O. Adinarayana Reddy, the learned counsel for the defendants 2 and 3 and Mr. M. Venkata Ramana Reddy the learned counsel for the 4th defendant that the finding reached by the learned single Judge that Ex. A-1 was true, merely on a comparison of the signatures and without referring to the evidence bearing on the execution of the said agreement, is not sustainable. He also contended that a comparison of the signatures also shows that the disputed signatures of the 1st defendant in Ex. A-1 do not tally with the admitted signatures in Exs. B-1, B-2 and A-11. The plaintiffs, having set up the agreement Ex. A-1 the execution of which was denied by the 1st defendant the onus is on the plaintiffs to establish that Ex. A-1 was executed by the 1st defendant, Sri Sivarama Sastry strongly relies upon the compromise Ex. A-11 and the order of the Tahsildar Ex. A-8 as lending support to the truth of Ex. A-1. Sri Adinarayana Reddy contended that the said compromise was brought about by pressure and threats and that the contents of the compromise are not true and therefore they cannot be relied upon as establishing the truth of Ex. A-1.

Their Lordships, on a consideration of the entire oral and documentary evidence, found that Ex. A-1 agreement is a forged and fabricated document that payment of Rs. 7000 thereunder is not true, and proceeded to observe as follows.

10. In this view, it becomes unnecessary to go into the question whether the plaintiffs suit is maintainable without seeking the relief of cancellation of the sale deed Ex. B. 1 dated 12-1-1981 executed by the 1st defendant in favour of the defendants 2 and 3.

11. It is then contended by Sri Sivarama Sastry the learned counsel for the appellants that the 1st defendant or his legal representative, the 4th defendant has not preferred any appeal or cross-objections with regard to the decree passed for refund of Rs. 7000/- and therefore, the same cannot be interfered with in Letters Patent Appeal. But, it is contended by the learned counsel for the respondents that under Order 41, Rule 33 C.P.C. the said decree for refund can be set aside on appeal even though no appeal or cross-objections have been preferred.

Order 41, R. 33 C. P. C. reads as follows:

'The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. (Proviso omitted as unnecessary).

12. In Sanka Seetaramayya v. Venkata Bapamma (1955 Andh WR 635) it was held by his Lordship Subba Rao, Chief Justice that :-

'The provisions of Order 41, Rule 33 are comprehensive and may justify a court, under certain circumstances, to dismiss a suit in the entirety even though the defendant did not file an appeal against the decree of the first court which was against him. But the overriding powers conferred under the rule on a Court should not be used except under extraordinary circumstances.'

13. In Nirmala Bala v. Balai Chand, : [1965]3SCR550 it was held by the majority of their Lordships of Supreme Court that (at p. 1876):

'Order 41, rule 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so would result in making inconsistent, contradictory or unworkable orders.'

14. In that case, their Lordships held that the facts of that case did not justify the exercise of the power under Order 41, Rule 33 C. P. C.

15. In a subsequent case in Koksing v. Deokabai, : [1976]2SCR963 his Lordship Mathew, J. speaking for the Court observed that (para 6).

'If an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require.'

16. In the instant case, in view of the finding that Ex. A-1 is not a true or a genuine-document and that the plaintiffs had failed to establish that a sum of Rs. 7000/- was in fact paid by the plaintiffs to the 1st defendant, it follows that the plaintiffs would not be entitled not only to the relief of specific performance but also to the relief of refund of the said amount of Rs. 7000/- by the 1st defendant. Therefore, the decree for refund of Rs. 7000/- by the 1st defendant to the plaintiffs cannot stand and would be inconsistent with the finding reached by us that Ex. A-1 is not a true document. The object of Order 41, rule 33 is to enable the appellate Court, where it interferes with or modifies the decision of the lower Court to give effect to that decision by interfering, if necessary, even with rights and liabilities of those who have not appealed from the decision of the lower Court. The object of the rule is to do complete justice between the parties. The exercise of the powers under O. 41, R. 33 no doubt is discretionary and has to be normally exercised only in cases in which failure to exercise the said power would lead to impossible, contradictory or unworkable orders. As we have found that Ex. A-1 was not executed by the 1st defendant and that the amount of Rs. 7000/- was not paid by the plaintiffs to the 1st defendant under ex. A-1, it logically follows that the plaintiffs would not be entitled to claim refund of Rs. 7000/-.

17. For the foregoing reasons, we set aside the finding of the learned single Judge that Ex. A-1 is a genuine document, and confirm the finding of the trial court that Ex. A-1 was not executed by the 1st defendant in favour of the plaintiffs. We also set aside the decree passed by the learned single Judge directing the 1st defendant to pay the plaintiffs, the sum of Rs. 7000/- with interest thereon at 6% per annum from the date of suit till the date of realisation.

18. In the result, the appeal is allowed and the judgment and decree of the learned single Judge in A. S. No. 952 of 1975 are set aside and the suit O. S. 142/71 on the file of the court of the Subordinate Judge, Nalgonda is dismissed with costs payable by the plaintiffs to the defendants throughout.

Appeal allowed.


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