Ghulam Mohammed, J.
1. Defendants 1 and 2, who are the appellants herein, preferred this appeal against the judgment and decree dated 12-10-1990 in O.S. No. 125 of 1984 on the file of the Subordinate Judge, Nuzvid.
2. The parties are described as arrayed in the trial Court. The brief averments of the plaint are as follows :
3. The plaintiff instituted the suit for specific performance of agreement of sale dated 26-9-1969 and for recovery of possession from the defendants and for future mesne profits with interest. It is stated that one late Gadicherla Seetha Maha-lakshmamma, was the original owner of the suit schedule property, who succeeded to these properties as the only heir of her late husband Gadicherla Venkata Gopala Krishna Rao under the provisions of the Hindu Succession Act. It is averred that one Sri Kopparthi Venkatachalam, the brother of the said Seethamahalakshamamma acting on her behalf leased out the suit schedule property to the plaintiff on 5-7-1968 under a written agreement of lease and delivered the possession of the same to the plaintiff who agreed to pay rent at the rate of Rs. 25/-per year and entitled the plaintiff to makenecessary erections. Accordingly the plaintiff erected thatched house and he has been in possession and enjoyment since 5-7-1968. Thereafter. Smt. Seethamaha-Iakshmamma offered to sell the schedule property to the plaintiff for a consideration of Rs.1,000/-. The plaintiff paid the entire sale consideration before 26-9-1969. On 26-9-1969, she executed an agreement of sale in favour of the plaintiff and agreed to execute and register the necessary sale deed, and she also acknowledged the possession of the said schedule property under above agreement of sale dated 26-9-1969. Since then the plaintiff has been paying house tax to the Tiruvuru Gram Panchayat. He has been using the said thatched house for his carpentry and smith work. While matters stood thus, on 14-7-1974 defendants 3, 4 and 6 attempted to forcibly occupy the schedule land and dispossed the plaintiff from it. Therefore, the plaintiff filed a suit O.S. No. 253 of 1974 on the file of the District Munsifs Court, Tiruvuru for a permanent injunction. In that suit an ad-interim temporary injunction was granted to the plaintiff against the defendants 3 to 6. Subsequently, the defendants undertook not to interfere with the plaintiff's possession and on the advise of the mediators the plaintiff withdrew the said suit and did not press for it. It is further averred that subsequently, in the year 1978 when the plaintiff and his family were away from village, defendants 3 to 6 unlawfully trespassed into the house and occupied about Ac.0.03 cents. After he returned to the village he objected for trespassing into the land unlawfully.
4. It is further stated by the plaintiff that he came to know that Seethamahalakshmamma died and her estate became involved in litigation. Therefore, the plaintiff waited all the while that some authoritative decision would come out from the said litigation initiated by Chilukuri Kamalamma, claiming to be the wife of the Gopala Krishna, impleading the plaintiff and the defendants 1 and 2 in O.S. No.285 of 1975 on the file of the District Munsif. Triuvuru. It is further averred that the defendants are in unlawful possession and occupation of the properties since 26-11-1981.
5. It is further stated that the defendants 1 and 2 are claiming to be the legatees under the will executed by Seethamahalakshmamma. As the defendants 1 and 2 are claiming to be the legatees, the plaintiff requested the defendants 1 and 2 from January, 1981 to execute and register the sale deed for the suit schedule property in his favour as the legatees of late Seethamahalakshmamma, But they postponed the same on the ground that the litigation in respect of her estate was not yet decided. So a comprehensive suit for the relief of specific performance against the defendants 1 and 2 and the relief of recovery of possession against the remaining defendants was filed.
6. Defendants 1 and 2 filed a common written statement contending as under :
Defendants 1 and 2 filed a written statement admitting the relationship and also the ownership of Gadicherla Seethamahalakshmamma, but they stated that Kopparthi Venkata Chalam never managed the estate of late Gadicherla Seethamahalakshmamma and he was never authorized to deal with her properties. They stated that the alleged lease set out by the plaintiff is not true. It is further averred that in the suit filed by one Chilukuri Kamalamma O.S. No.285 of 1975 on the file of the District Munsif's Court, Tiruvur, which was subsequently transferred to Subordinate Judge's Court, Gudlwada as O.S. No. 86 of 1981, and again the same was re-numbered as O.S. No. 56 of 1984, the plaintiff being the party in that suit he remained ex parte and he did not put forward his present case in that suit. They also denied about the possession and enjoyment of the suit property since 5-2-1968 by the plaintiff. They stated that the plaintiff never paid Rs. 1,000/- to Seetha Mahalakshmamma and she never executed the agreement dated 26-9-1969 or any other agreement in favour of the plaintiff and that the said agreement is not true and genuine. They further stated that several people trespassed the properties of Seethamahalakshmamma and it was only in or about 1974, that the plaintiff seems to have raised a shed on the suit property and filed a suit against the defendants 3, 4 and 6, and any such underhand dealings do not bind them.
7. The plaintiff never issued any registered notice calling upon her to execute the sale deed. It is further averred that it is correct that the property of Seethamahalakshmamma was trespassedby several persons. It is also stated that the defendants are not aware of any payment of tax and the same does not confer any right on him.
8. It is further stated that Seethamahalakshmamma executed her last will on 4-12-1977 bequeathing her estate to these defendants and their mother Goparaju Padmavathi and their brother Goparaju Yegyanna Panthulu and their uncle's son Kopparthi Yegyanna. The said Will is in the custody of Kopparthi Yegyanna. The suit is bad for non-joinder of necessary parties and also bad for mis-joinder of cause of action i.e. multifariousness. The plaintiff is therefore guilty of laches. Therefore the plaintiff is not entitled for relief of specific performance of the suit and the suit is barred by time.
9. The 3rd defendant filed written statement which was adopted by defendants 4 to 6. They stated that the plaint schedule property never devolved upon late Gadicherla Seethamahalakshmamma. Her husband Venkata Gopala Krishnarao sold away the plaint schedule property and another extent of Ac.2.50 cents of land to the 4th defendant and he received the entire consideration of a sum of Rs. 1000/- from her and that they are in possession and enjoyment of the said properties. It is further stated that when the fourth defendant and third defendant were away in Hyderabad, the plaintiff unauthorisedly occupied a portion of the plaint schedule property and erected a two poled thatched house therein. When they demanded him to vacate the premises, the plaintiff requested for some time. The defendants 3 and 4 thereupon agreed and the plaintiff withdraw the suit O.S. No.253 of 1974. They further denied the averments made by the plaintiff and stated that the fourth defendant got the title to the suit property both under the agreement of sale as well as under the law of adverse possession and therefore the suit is liable to be dismissed.
10. On the above pleadings, the trial Court framed necessary issues for consideration, which are as under :
i) Whether the suit for specific performance is not maintainable in view of dismissal of O.S. No.253/1974, District Munsif's Court, Tiruvur, and omission to claim it in O.S. No. 56 1984 of this Court?
ii) Whether the suit for specific performance and suit for recovery of possession suffer due to mis-joinder and suit as framed is not maintainable?
iii) Whether the suit for possession is under-valued?
iv) Whether the suit is barred by time?
v) Whether the possession of plaintiff was permissive and he surrendered as pleaded by defendants 3 to 6 or whether the plaintiff was dispossessed as pleaded by him?
vi) Whether the plaintiff is entitled to recovery of possession?
vii) Whether any defendant is entitled to exemplary costs of suit?
viii) to what relief?
11. In support of his case, the plaintiff examined P.Ws. 1 to 4 and marked Ex. A. 1.
12. P.W. 1 is the plaintiff himself. P.W.2 who is a neighbour deposed about the possession of the property. P.W.3 also deposed in the same lines. P.W.4 is a scribe to Ex. A. 1 who deposed in clear and categorical terms about the affixing of signature of Seetha Mahalakshmamma on Ex.A. 1. The defendants examined D.Ws. 1 to 3 and marked Exs. B.1 to B.5.
13. Considering the entire evidence on record, the trial Court while answering the issues in favour of the plaintiff decreed the suit filed by the plaintiff and directed the appellants-defendants 1 and 2 to execute a regular sale deed in respect of the schedule land, as the legal representative of late Gadicharla Seethamahalakshmamma, in favour of the plaintiff conveying the schedule land to him, and register the same within two months from the date of the decree, failing which the plaintiff is at liberty to get the sale deed executed by the Court on behalf of the defendants 1 and 2 and also directed the defendants 3 to 6 to vacate the suit schedule property and deliver the possession of the same to the plaintiff forthwith, and dismissed the suit in all other respects i.e. for furture mesne profits together with interest,
14. The learned counsel for the appellant Sri Prabhakar Rao mainly contended that in the absence of any notice, prior to filing of the suit, the plaintiff being not diligent in approaching the Court he is not entitled for the relief of specific performance on the ground of laches. It is further contended that the plaintiff is estopped from claimingany right over the property on account of his conduct in withdrawing the suit filed by him for injunction and not participating in the suit for partition filed by the 2nd wife of Gadicharla Venkata Gopala Krishna Rao indicating his stand. These are the two strong circumstances, the plaintiff is not entitled for the relief of specific performance. Mr. Prabhakar Rao, learned counsel for the appellants further contended that the plaintiff is not entitled for the relief of possession as the suit is had for clubbing of all the causes. Lastly he contended that the legatees have not been impleaded and the suit is bad for mis-joinder of parties and that the plaintiffs validity under Ex.A. 1 has not been established.
15. On the other hand, Sri T. Anand, learned counsel for the respondents has drawn my attention to the provisions of the Specific Relief Act particularly Section 22 and also the averments made in the plaint about the oral demand made by the plaintiff demanding registration. He further contended that at any event the suit is within the time in view of the fact that no time frame is fixed under Ex.A. 1 for its performance. He has drawn my attention to the judgments reported in Madamshetty Satyanarayana v. Yellogl Rao, : 2SCR221 , D. Arvind Kumar v. Umi Hani Begum, : 1993(2)ALT193 to the effect that in a suit for specific performance in the absence of any variations in the stand which prejudice the interests of the defendant the Court cannot reject the relief of specific performance on the ground of delay. Since the relief is a discretionary one the Court has to exercise its discretion judiciously on the facts and circumstances of the case. He contended that ho interference is warranted in the appeal.
16. The points that fall for consideration in this appeal is whether the plaintiff is entitled for the relief of specific performance of the agreement, whether the suit is bad for non-joinder of the necessary parties and multifariousness.
17. With regard to the issue of maintainability the trial Court considered the circumstances with regard to the dismissal of the injunction suit i.e. withdrawal of the suit filed for injunction by the plaintiff and also non-participation of the plaintiff in the second suit filed by one Chilukuri Kamalamma in O.S. No. 285 of 1975 whichwas renumbered as O.S. No. 56 of 1984 wherein the plaintiff was described as alienee.
18. With regard to the issue of dismissal of the suit filed by the plaintiff the trial Court held that suit O.S. No. 253 of 1974 was filed for permanent injunction against the third defendant and others, the present suit though filed for specific performance against the legal representatives of Seetha-mahalakshmamma, and against the defendants 3 to 6 for recovery of the suit property, the dismissal of O.S. No. 253 of 1974 can hardly be said to have any impact on the present case. It was held that the defendants though took the plea regarding maintainability of the suit, no authentic record was filed by them so as to amplify as to how O.S. No. 253 of 1974 referred to above comes in the way of the plaintiff. The other suit O.S. No. 56 of 1984 on the file of the Court below filed by Chilukuri Kamalamma, wherein the plaintiff remained ex parte, seeking partition of the property styling herself as the wife of Gadicherla Venkata Gopala Krishna Rao, who was the husband of Seethamahalakshmamma, was dismissed by the Court bleow holding that she is not legally wedded wife of Gadicherla Venkata Gopala Krishna Rao. The Court below held that the plea that the plaintiff's remaining ex parte in the earlier suit does not render the present suit not maintainable at all. The trial Court found that these two points urged by the defendants are not material so as to disentitle the plaintiff to seek the relief in the present suit.
19. The trial Court considered the plaint, wherein the plaintiff has come up with a definite averment in this regard at page No.6 of the plaint, wherein it was alleged that D.W. 1 and D.W.2 are the sons of the sister of Seethamahalakshmamma and are claiming to be her heirs as per the alleged Will dated 4-12-1977; and that the plaintiff has been demanding from January, 1981 to execute the registered sale deed as the heirs of Seethamahalakshmamma and they have postponed the matter on the ground that the litigation to her estate is not finalized. It is the case of the plaintiff that after he was dispossessed from the property he filed a police complaint and subsequently, filed the present suit.
20. It appears that the defendants 1 and 2 in their written statement asserted that as per the said Will their mother by namePadmavathi and their brother by name Yegnanna Panthulu and their uncle's son by name Kopparthi Yegyanna were also legatees, and their omission amounts to nonjoinder of the necessary parties, admittedly, the defendants did not produce the alleged Will to prove that the suit suffers from nonjoinder of parties. Further, in the earlier litigation filed by Chilukuri Kamalamma, the present defendants 1 and 2 alone were shown as the defendants even though Seethamahalakshmamma died during the pendency of that suit. The trial Court also observed that there is no record to show that all the legatees under the Will dated 4-12-1977 were invariably brought on record in that suit or that such a course was insisted upon by the appellants-defendants 1 and 2. Further, a perusal of Ex. B. 2 at pages 96 and 97 shows that the question of validity of the said Will was kept open. Therefore, as held by the trial Court it is for the defendants 1 and 2 to prove the infirmity of non-joinder of necessary parties. The trial Court rejected their contention mainly on the ground that the Will was not brought on record and it was not proved. Apart from that it is noticed from the averments in the Ex. B.3-plaint in O.S. No. 56 of 1984 that the defendants 1 and 2 herein alone are shown as defendants 20 and 21 and even after the death of Seethamahalakshmamma during the pendency of the suit no legatees were brought on record. Under those circumstances, the trial Court rightly held that issue in favour of the plaintiff.
21. With regard to the issue of maintainability of the suit on the ground of multifariousness, though the plaintiff filed the suit seeking the relief of specific performance of the agreement against the appellants-defendants 1 and 2, and also the relief of recovery of possession from the remaining defendants, the trial Court to avoid multiplicity of proceedings and to put a quietus to the subject matter of the suit, decided the issue in favour of the plaintiff.
22. The trial Court further held that the suit was numbered and the valuation was accepted and no material was produced to change that finding about the payment of Court fee, the relief of possession is not under-value.
23. With regard to the issue of limitation considering the averments in the plaint and also the recitals in Ex.A. 1 to the effect thatthe sale deed will be executed as and when required by the plaintiff and particularly about the oral request made by the plaintiff in January, 1981 and in the absence of any refusal by the defendants, except stating that the issue is pending in the Court that issue was also held in favour of the plaintiff. It is also stated that as virtually no denial was made except in the written statement, the starting point for the limitation did not even commence to run.
24. The trial Court also went into the genuineness or otherwise of Ex. A. 1 agreement of sale, which is a self explanatory, and also considered whether there are any hurdles or impediments for grant of relief of specific performance. P.W.4 who is a scribe to Ex. A.1, in clear and categorical terms stated that Seethamahalakshmamma has affixed her signature in his presence. The learned Judge also perused the averments made in the written statement by the defendants and also the evidence adduced on behalf of the defendants and held that defendants did not choose to obtain the opinion of an expert in regard to the genuineness of the disputed signature. Further, the learned Judge by considering the depositions made by the defendants held that under Ex.A. 1 the plaintiff is entitled for the relief of specific performance. It was further held that Ex. A. 1 has not come into existence all of a sudden and added to that there is a clear cut admission on the part of the defendants 1 and 2 of plaintiff having been in possession of the suit schedule property for some time.
25. The learned Judge further found that there is variations in the versions of defendants 1 and 2 and also defendant No. 3 and the version of P.W.4 remains as it is. Ex. A. 1 indicates about the lease and also about the possession, receipt of entire sale consideration of Rs. 1000/-, considering the admission of the defendants about the possession of the plaintiff for 7 years, the pleadings and the averments made in the plaint Ex.B.3 describing the plaintiff as one of the alienee of the suit schedule and admitting his possession and the stand of the defendants 1 and 2 herein in the earlier suit, the trial Court answered the issue in favour of the plaintiff.
26. In the above circumstances, the first contention of the learned counsel for the appellants with regard to the delay andlapses on the part of the appellant cannot be countenanced particularly in view of the fact that the plaintiff made a request demanding the registration from the defendants 1 and 2 and the said defendants postponed the same on the ground of pending litigation. That does not in my view amount to refusal as contemplated under Article 54 of the Limitation Act, even assuming that the suit is filed in the year 1983 it is within time in the absence of any time framed for its performance. The Apex Court in Madarnestty Satyanarayana's case : 2SCR221 (supra) held as follows :
'We cannot allow the learned counsel for the appellant to raise before us the first question, namely, that the 1st respondent did not accept the repudiation but kept the contract alive and committed a breach thereof. With the result that he disqualified himself to file the suit for specific relief, for the said plea was not raised in the pleadings, no issue was raised in respect thereof and no arguments were addressed either in the Trial Court or in the High Court. As the question is a mixed question of fact and law, we cannot permit the appellant to raise it for the first time before us.
At the outset we shall construe the relevant sections of the Specific Relief Act and the Limitation Act unhampered by judicial decisions :
Specific Relief Act, Section 22 : The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal.
Under Section 22 of the Specific Relief act, relief of specific performance is discretionary but not arbitrary; discretion must be exercised in accordance with sound and reasonable Judicial principles. The cases providing for a guide to Courts to exercise discretion one way or other are only illustrative; they are not intended to be exhaustive. As Article 13 of the Limitation Act prescribes a period of 3 years from the date fixed there under for specific performance of a contract, it follows that mere delay without more extending up to the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion,after excluding the cases mentioned in Section 22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises; for either there will be no subisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by three cases, otherwise the substantive section becomes otiose. It is really difficult to define that field. Diverse situation may arise which may induce a Court not to exercise the discretion in favour of the plaintiff. It may better be left undefined except to state what the section says, namely, discretion of the Court is not arbitrary, but sound and reasonable guided by Judicial principles and capable of correction by a Court of appeal.
It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specific performance.
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 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 sence, 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 Kabushiki Kaisha ( (1935) L.R. 621 : I.L.R. 62 Ind. APP 100 : (AIR 1935 PC 79)). 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 isdirectly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.'
27. The plaintiff in the earlier suit O.S. 56 of 1984 filed by one Kamalamma was described as one of the alienee, wherein she stated to have demanded the partition. That suit was dismissed. Ex. A.1 which is a self contained document contains almost all the aspects particularly the receipt of payment of sale consideration and also admitting the possession of the plaintiff and describing him as lessee through Venkata Ratnam, together with the evidence of scribe writer P.W.4 which is to the effect that in his presence the said Seethamahalakshmamma has affixed her signature, the plaintiff thus initially discharged his burden to prove Ex.A. 1. The trial Court rightly held that the defendants did not prove that the document is not a genuine documents particularly in view of the in-consisting statements of defendant No. 1 as D.W.3, The effect of withdrawal of the suit filed by the plaintiff for injunction and also non-participation in the suit O.S. No. 56 of 1984 by one Kamalamma does not in my view disentitle the plaintiff to seek the specific performance in the present suit.
28. Though in the plaint the plaintiff has stated that he paid the entire sale consideration in instalments, but in the evidence there is slight variation about the mode of payment saying that it was paid at one time. However, this does not seem to be a circumstance to disbelieve Ex. A. 1 is not a genuine document. The trial Court rightly held that plaintiff having proved Ex. A. 1 there is no other circumstances to take a different view than the view taken by the trial Court.
29. As regards the mis-joinder of the parties i.e. other legatees who are not impleaded in the suit, this contention has to be examined with reference to the averments made in the earlier plaint, and with reference to the Will dated 4-12-1977. Perusal of the plaint averments in Ex.B.3 it is seen that defendants 1 and 2 alone were shown as legatees and even during the pendency of the suit they never shown any interest to bring the legal representatives on record.The alleged Will was neither produced nor it was filed in the Court. A mere statement does not amount to prove the fact that the other persons are also legatees of the Will. In the circumstances, I do not see any ground to dislodge the findings on this aspect.
30. The Apex Court in Madhusudhan Das v. Narayan Bai, : 1SCR851 has held as follows :
'The High Court disagreed with the trial and held that the adoption had not been established. In doing so, it adopted an approach which, to our mind, is plainly erroneous. It proceeded to judge the credibility of the witnesses mainly with reference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its true in the context of the surrounding circumstances. It rejected the testimony of the appellant's witnesses substantially on the ground that they were related to the appellant or out of favour with Narsinghdas. This consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witnesses. We think the proper rule to be that when a witness holds a position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on the Court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. It is not open to the Court to reject the evidence without anything more on the mere ground of relationship or favour or possible prejudice. The judgment under appeal indicate that the High Court commenced with that mistaken approach, and we see its influence working throughout its appraisal of the testimony of the several witnesses. It is only logical that with its approach so oriented even the most significant material adduced by the appellant should, in the eyes of the High Court, take on a negative hue. The High Court should also have reminded itself that these same witnesses had given their evidence before the trial Court, which had the opportunity of seeing their demeanor in the witness box, and the appreciation of their evidence by the trial Court should have been given due consideration in the light of that fact.'
31. Moreover, in the teeth of Section 22 of the Specific Relief Act, the contentions of thelearned counsel for the appellants does not hold good particularly to avoid the multiplicity of suits the plaintiff can ask for specific performance together with possession. This view is also fortified by the decision of the Supreme Court in Babu Lal v. Hazari Lal Kishori Lal, : 3SCR94 which even permitted the amendment of the plaint for seeking possession. In this case, while construing the provisions of Section 22 of the Specific Relief Act, the Court observed as follows :
'The expression 'in an appropriate case' in Section 22 at page 823
(1) is very significant. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immoveable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the sale. Besides, the proviso to Sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'. In a case where exclusive possession is with the contracting party a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of 3.55(1) of the T.P. Act which provides that the seller is bound to give on being so required, the buyer or such person as he directs such possession of the property as its nature admits.'
32. For the foregoing discussion, and in view of the judgments referred supra, I do not see any ground to interfere in this appeal. The appeal being devoid of merits is accordingly dismissed. No costs.