High Court Of Andhra Pradesh

Neelam Williams V. Mohammad Iqbal Pasha & Others

A.S. No. 2194 of 1999 & A.S. No. 3091 of 1999. 21-06-2010

JUDGMENT

1. The learned Additional Senior Civil Judge at Eluru, disposed of O.S. No.149 of 1990 and O.S. No.135 of 1993 by a common judgment dated 09th day of June 1999. O.S. No.149 of 1990 was filed praying for the relief of specific performance of an oral agreement of sale. O.S. No.135 of 1993 was filed for eviction of tenants and for recovery of rents or damages for use and occupation or in the alternative for recovery of possession and mesne profits or damages for use and occupation in relation to the plaint schedule property.

2. The learned Additional Senior Civil Judge at Eluru, in the light of the respective pleadings of the parties having settled the issues, recorded common evidence in O.S. No.149 of 1990 with the consent of both the parties, evidence of P.Ws.1 to 6, D.Ws.1 to 9, marked Exs.A-1 to A-14, Exs.B-1 to B-25 and after recording findings in detail came to the conclusion that the relief of specific performance prayed for in O.S. No.149 of 1990 to be negatived and accordingly dismissed the said suit with costs and decreed O.S. No.135 of 1993 aforesaid.

3. Aggrieved by the decree and judgment made in O.S. No.149 of 1990, the unsuccessful plaintiff filed A.S. No.3091 of 1999. The said unsuccessful plaintiff in O.S. No.149 of 1990 being the third defendant in O.S. No.135 of 1993 had preferred A.S. No.2194 of 1999.

4. In view of the fact that common evidence was recorded and common judgment had been delivered in both the aforesaid suits, both these appeals also are being disposed of by a common judgment by this Court.

Submissions of Sri K.V. Satyanarayana:

5. Sri K.V. Satyanarayana, learned counsel representing appellant in both these appeals had taken this Court through the respective pleadings of the parties both in O.S. No.149 of 1990 and O.S. No.135 of 1993 and would maintain that in the light of the facts and circumstances the learned Additional Senior Civil Judge, Eluru, totally erred in dismissing the suit for specific performance and decreeing the suit for eviction. The learned counsel also laid emphasis on the fact that the appellant had cleared of the liability contracted by the respondents and this would clearly establish the oral agreement of sale pleaded by the appellant. The learned counsel also further submit that the issuance of cheque for Rs.25,000/- on 16.2.1987 being not in serious controversy, this fact would clearly establish the existence of such oral agreement of sale. The possession of the discharged mortgage deed by the payment also would establish the said oral agreement of sale. The learned counsel also while further elaborating his submissions had pointed out to the oral and documentary evidence available on record and would maintain that Ex.A-10 is the office copy of the legal notice and the reply was given on 27.8.1990 and even by that time the suit was instituted. The learned counsel also pointed out to the evidence of D.W.1 and also the evidence of D.W.3 and would maintain that the admission made by D.W.3 would clearly go to show that the stand taken by D.W.1 cannot be said to be a sustainable stand. The learned counsel also would point out that the clear evidence of P.W.1 well supported by P.Ws.2 to 6 would clearly establish the case of the appellant. The counsel also pointed out to Ex.A-9 the pocket notebook and further pointed out the inconsistency in the pleadings in both the suits as well. The learned counsel also pointed out to Ex.B-7 and further had pointed out relating to the non-examination of certain witnesses. The counsel specifically pointed out to the oral evidence available on record and would maintain that the terms of oral agreement had been clearly established. The non-inclusion of D-6 in the contest of the allegations in the plaint in O.S. No.135 of 1993 also had been specifically pointed out.When the discharge of mortgage, in fact, had been accepted, the findings recorded contra cannot be sustained. The eviction suit had been thought of subsequent to the suit filed for the relief of specific performance.

6. The evidence of D.W.1 is that D.W.1 was in need of money. While further elaborating his submissions, the learned counsel also specifically pointed out to the respective stands taken by the parties in the pleadings in O.S. No.135 of 1993 and would maintain that even on the established facts the civil court cannot entertain the suit for eviction and even if it is to be taken that the oral agreement of sale had not been established, the remedy, if any, for eviction would be before the appropriate Rent Controller, definitely not before the civil court. The counsel also would maintain that the suit had been thought of as a counterblast to the suit for specific performance. The learned counsel also would maintain that the trial court ought to have appreciated that the first defendant and second defendant never stayed in India and, hence, the tenancy as pleaded by the plaintiff in O.S. No.135 of 1993 cannot be believed. The learned counsel relied on certain decisions and ultimately would conclude that since the findings recorded being not in accordance with the oral and documentary evidence available on record, the suit for specific performance to be decreed and the suit for eviction to be dismissed.

Submissions of Sri D.V.N. Acharya:

7. Sri D.V.N. Acharya learned counsel representing R-2/D-2 had pointed out that the oral agreement of sale had been disbelieved by the trial court. The payment of Rs.25,000/- by way of cheque was made to a third party. The learned counsel also pointed out the periodical increase of rents as can be evidenced from Ex.A-9. The learned counsel also further had taken this Court through the oral and documentary evidence available on record and ultimately would conclude that the findings being in accordance with law, the said findings are to be confirmed. The learned counsel also relied on certain decisions to substantiate his submissions.

Submissions of Sri V.L.N. Gopala Krishna Murthy:

8. Sri V.L.N. Gopala Krishna Murthy, the learned counsel representing other contesting respondents would maintain that the alleged payment of Rs.25,000/- had not been made to any of these parties to the suit. In the facts and circumstances of the case, it may have to be inferred that time to be the essence of contract, but the case appears to be otherwise. The counsel also pointed out to the absence of contract between plaintiff and D-6. Ex.A-2 letter had been manufactured. Improvements between the pleadings and proof had been specifically pointed out in the evidence of P.W.2. P.W.1 was cross-examined after P.W.2 and the improvements made by both these witnesses had been specifically pointed out. The learned counsel while elaborating his submissions would maintain that the payment of Rs.25,000/-, at any rate, cannot be related to the alleged oral agreement of sale. The discharge of the mortgage debt also was not proved. When the party approached the Court with unclean hands, suit for specific performance cannot be decreed even otherwise the plea is that an oral agreement of sale had been entered into. Unless there is clear evidence, it cannot be said that the same had been established. The learned counsel also pointed out to Ex.B-24 and Ex.B-25 and also Ex.A-3 and would maintain that these would go to show P.W.3 also was resident of Eluru and even in this regard a false stand had been taken. Hence, the evidence of P.W.2 that he never resided at Eluru cannot be believed. The learned counsel also pointed out that P.W.1 has no right to maintain the appeal at all in the light of the finding recorded that P.W.2 is the tenant. The learned counsel also relied on certain decisions to substantiate his submissions.

9. Heard the counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the trial court as well.

10. Before taking up further discussion it may be appropriate to have a glance at the respective pleadings of the parties, the evidence available on record and also the findings recorded by the trial court in nut-shell.

Pleadings of the parties:

O.S. No.149 of 1990:

Averments made in the plaint:

11. This is a suit filed for the relief of specific performance of oral agreement of sale, dated 16.2.1987, said to have been entered into by the plaintiff and defendants 1 to 4 and the mother of 5th defendant for Rs.2.00 lakhs in respect of plaint schedule property.

12. Defendants 1 to 3 and 6 are the sons of late Abdul Razak. After his death, defendants 1 to 4 and 6th defendant and the mother of 5th defendant became entitled to the schedule property. The wife of Abdul Razak predeceased him.

13. It is also averred that the plaintiff took the ground floor of the upstair building on lease from one late Md. Maqbul, maternal uncle of defendants 1 to 4 and 6, in 1973 on a monthly rental of Rs.200/-. In 1977 the plaintiff also took the upstair portion on lease on a monthly rental of Rs.150/-. Thus, from 1977, the plaintiff had been in possession and enjoyment of the entire plaint schedule building on a monthly rental of Rs.350/-. In 1984 the rent was enhanced to Rs.900/-. The plaintiff continued in occupation of the plaint schedule property as tenant till 16.2.1987 on which date he purchased the plaint schedule property under an oral agreement of sale.

14. Further it is averred that defendants 1 to 4 and 6 and mother of 5th defendant mortgaged the plaint schedule property for Rs.15,000/- to Neelam Raja Ratna Bai, the elder sister of the plaintiff, on 15.7.1980 and executed a registered mortgage deed in her favour. While so, on 16.2.1987 defendants 1 to 4, late Kulshid Sultana, the mother of 5th defendant, offered to sell and the plaintiff agreed to purchase the plaint schedule property for a valuable consideration of Rs.2,00,000/-. The oral agreement of sale took place in the presence of Md. Khaja Khan, M.J.S. Prasada Rao, N.J. Kumar and Jayadeep. As per the terms of oral agreement of sale, the plaintiff shall pay Rs.25,000/- as advance on the same day, i.e., on 16.2.1987 and he shall discharge the registered mortgage deed, dated 15.7.1980, executed by defendants 1 to 4 and the mother of 5th defendant in favour of his elder sister Neelam Raja Ratna Bai and the said mortgage deed had to be taken as a voucher for the sale deed and the amount of mortgage remaining due was arrived at Rs.19,500/- and the balance sale consideration of Rs.1,55,500/- shall be paid by the plaintiff within 8 months from the date of oral agreement of sale i.e., 16.2.1987. The property shall be delivered to the plaintiff on 16.2.1987 itself. Defendants 1 to 4 and the mother of 5th defendant undertook to get the sale deed executed by 6th defendant also whose whereabouts are not known by that time.

15. It is also further averred that in pursuance of the said oral agreement of sale, dated 16.2.1987, the plaintiff issued a cheque bearing No.594863, dated 16.2.1987, for Rs.25,000/- drawn on State Bank of India, Eluru, in the name of Md. Pasha, who is the husband’s brother of 4th defendant, at the request of defendants 1 to 4 and the mother of 5th defendant. Pursuant to the said oral agreement of sale, the plaintiff discharged the mortgage debt due to his sister and took the mortgage deed as voucher thereof. Since the plaintiff had been in possession of the plaint schedule property, the property was delivered to him and the plaintiff has been continuing in possession of the buildings from 16.2.1987 onwards.

16. It is also averred that the plaintiff demanded defendants 1 to 4 and mother of 5th defendant to execute a registered sale deed after receiving the balance sale consideration before the agreed date, i.e., 16.10.1987. But, defendants 1 to 4 and mother of 5th defendant postponed the execution of the sale deed on the pretext that 6th defendant was being persuaded to execute the sale deed along with them and represented that they would execute the sale deed after securing the presence of 6th defendant. The plaintiff has been always ready and willing to perform his part of contract.

17. Further it is averred that Kulshid Sultana died leaving behind her daughter i.e., 5th defendant, as her heir. The plaintiff got issued a registered notice, dated 11.8.1990, demanding the defendants to execute the sale deed after receiving balance of sale consideration. After receipt of the notice, defendants 1 to 5 illegally tried to dispossess the plaintiff. Thus, defendants 1 to 5 refused the demand of the plaintiff. Hence, the suit.

Averments made in the written statement:

18. Defendants 1 and 2 filed common written statement denying the allegations of the plaint inter alia admitting the relationship of the defendants. It was also pleaded that the name of 5th defendant is Suphia Parveen and not simply Suphia. Defendant No.6 left the house long time back and his whereabouts are not known. The defendants also admitted the area and structures of the plaint schedule property as described by the plaintiff and they had also admitted that the plaint schedule property originally belonged to late Abdul Razak and after his death it was devolved on defendants 1 to 4 and 6 and the mother of 5th defendant. But they had denied that the wife of Abdul Razak predeceased him.

19. Further it is stated that defendants 1 to 4 and the mother of 5th defendant never agreed to sell the plaint schedule property to the plaintiff on 16.2.1987 or at any point of time. The defendants had absolutely no need or necessity to sell the property. The present rate of plaint schedule property is more than Rs.7.00 lakhs and on the alleged date of agreement its value was not less than Rs.5.00 lakhs as alleged by the plaintiff. The letter dated 24.8.1987 said to have been written by the sister of the plaintiff Smt. Neelam Raja Ratna Bai is false and fabricated document. The plaintiff had set up a false and fraudulent plea of oral agreement of sale in collusion with his sister Neelam Raja Ratna Bai with a view to grab the plaint schedule property. The defendants also denied the payment of Rs.25,000/- through a cheque bearing No.594863, dated 16.2.1987.

20. It is also further stated that the building was never leased out in 1973 to the plaintiff by late Md. Maqbul on a monthly rental of Rs.200/- for the ground floor and in 1971 the plaintiff took the upstair also on lease on condition of paying Rs.150/- per month for the upstair building as rent as alleged by the plaintiff. The defendants also denied that the plaintiff has been in possession and enjoyment of the entire building from 1977 on condition of paying Rs.350/- and thereafter the rent was enhanced to Rs.900/- in the year 1984 and that the plaintiff continued in occupation of the plaint schedule property as tenant and he became owner of the property on the basis of the alleged oral agreement of sale, dated 16.2.1987. The defendants had been demanding their tenant Neelam Raja Ratna Bai to vacate and hand over possession.

21. It is also stated that the defendants leased out their building to Neelam Raja Ratna Bai and her husband David L. Traxler and subsequently they left for U.S.A. in 1984 and at the time of their leaving for U.S.A. the agreed rent was Rs.1,100/- per month and subsequently it was enhanced to Rs.1,300/- per month with effect from 01.01.1989. The plaintiff, his brothers and another sister Smt. Lalitha Bai had been simply staying in the plaint schedule house as family members of Neelam Raja Ratna Bai, the tenant of the defendants. The plaintiff is in illegal and unauthorized occupation in the absence of the tenant who had been staying abroad for some time now. The defendants had specifically denied that the plaintiff demanded defendants 1 to 4 and the mother of 5th defendant to execute a sale deed after receiving the balance of sale consideration and that the defendants postponed the execution of the sale deed on the pretext that the 6th defendant was being persuaded to execute the sale deed along with them and that they represented the plaintiff that they would execute the sale deed after securing the present of 6th defendant.

22. It is also further stated that the plaintiff got issued a registered legal notice, dated 11.8.1990, with all false allegations setting up a false oral agreement of sale to grab the property of the defendants. Defendants 1 to 4 got issued reply legal notice on 27.8.1990 and the same was received by the counsel for the plaintiff on 28.8.1990. The plaintiff even without waiting for the reply, filed the present suit. The defendants were not aware of the police report given by the plaintiff on 14.8.1990. The plaintiff gave a false report on 17.8.1990 against the defendants with a view to create evidence in support of his bogus claim. There is no cause of action to file the suit and, hence, the suit is liable for dismissal.

23. Defendants 3 to 5 had adopted the written statement of defendants 1 and 2. Defendant No.6 had not chosen to contest the matter.

24. Issues settled by the trial court:

(1)Whether the oral agreement of sale dated 16.2.1987 is true?

(2)Whether the plaintiff was a tenant in possession of the subject property by the date of alleged oral agreement?

(3)Whether the plaintiff is entitled to the relief of specific performance of alleged oral agreement?

(4)To what relief is the plaintiff entitled?

Pleadings in O.S. No.135 of 1993:

Averments of the plaint:

25. This is a suit filed by defendants 1 to 4 in O.S. No.149 of 1990 as plaintiffs and the plaintiff in O.S. No.149 of 1990 is shown as third defendant in the suit and it is a suit for eviction of tenants and for recovery of arrears of rents or damages for use and occupation or in the alternative for recovery of possession and mesne profits or damages for use and occupation of the plaint schedule property.

26. It was pleaded that plaintiffs 1 to 3 are brothers and 4th defendant is their sister. The mother of 4th defendant late Smt. Kurshid Sultana is the elder sister of plaintiffs 1 to 4 and they are the children of Abdul Rajak and his wife late Almas Begum. Plaintiffs 1 to 3 had an elder brother by name Md. Farooz Pasha who left the house without intimation in or about 1976 and whose whereabouts are not known. Defendant No.4 is the only daughter of late Kurshid Sultana. She had been married and had been living at Vadi in Karnataka State.

27. It was further pleaded that the plaintiffs are the absolute owners of the plaint schedule property comprising 700 square yards of site with upstair building and tiled shed therein. The second defendant is the husband of first defendant and the third defendant is the younger brother of first defendant. The third defendant had been staying with first defendant as a member of her family and assisting her in her affairs.

28. Further it was pleaded that defendants 1 and 2 took the ground floor of the plaint schedule building for rent for their residence. Later they took the upstair portion also and they were paying rent of Rs.350/- per month from some years for the entire building and after periodical enhancements, defendants 1 and 2 were paying rent of Rs.900/- per month by 1984. Earlier, plaintiffs 1 to 4 and the mother of 4th defendant together borrowed Rs.15,000/- from the first defendant on the security of the plaint schedule property and executed a registered simple mortgage bond, dated 15.7.1980, agreeing to repay the same with interest at 15% per annum. On 15.10.1983 the plaintiffs made a payment of Rs.9,312-50 ps. comprised of Rs.7,312-50 ps. towards interest and Rs.2,000/- towards principal by that date and it was duly endorsed on the mortgage bond.

29. It was also further pleaded that defendants 1 and 2 left for U.S.A. in 1984 and at the time of their leaving, the agreed rent was Rs.900/- per month. Defendants 1 and 2 assured the plaintiffs that they would be paying the monthly rents through the third defendant, who was attending to their affairs here and in management of their properties and that there could not be any apprehension regarding the same. The rent was enhanced to Rs.1,100/- per month in October, 1986, and the said rent was in vogue till 31.12.1988. The plaintiffs were asking defendants 1 and 2 to vacate and hand over possession of the building, as they required it for their own residence and occupation. Defendants 1 and 2 often times the third defendant on behalf of defendants 1 and 2 were only giving assurances and promising to pay arrears of rent and vacate the building. Defendants 1 and 2 paid the agreed rents at Rs.1,100/- per month only till 31.8.1987 and the rents were being paid through the first defendant’s younger brother, i.e., the third defendant. The rents for the subsequent period, i.e., from 01.9.1987 to 31.12.1988 at the agreed rate of Rs.1,100/- per month were not paid. The plaintiffs, their relatives as well as the third defendant contacted the first defendant through phone a number of times to vacate the premises after paying the arrears of rent.

30. It was also pleaded that in the month of November or December, 1988, defendant No.1, through telephone, promised to come to India very soon, settle the arrears, pay the same and vacate the building on her return to India and that there could not be any fear about it and agreed to increase the monthly rent to Rs.1,300/- with effect from 01.01.1989. Thus, the agreed rent was Rs.1,300/- per month with effect from 01.01.1989. Defendants 1 and 2 paid monthly rents due to the plaintiffs up to 31.8.1987 only, but failed to pay the monthly rents from 01-9-1987 to

31-12-1988 at the rate of Rs.1,100/- per month and for the period from 01-01-1989 to 31-8-1990 and subsequently till date at the rate of Rs.1,300/- per month as had been agreed upon.

31. Further it was pleaded that when the first defendant came to India in December, 1989, the plaintiffs demanded payment of all arrears and vacate the building and make it available for plaintiffs’ occupation. During her visit to Eluru in December, 1989, the first defendant assured the plaintiffs that there was nothing to worry about it and that the plaintiffs might not entertain any doubts about her bona fides and that she would adjust part of the arrears towards the balance amount due to her under mortgage bond, dated 15.7.1980, and its discharge and positively pay the balance arrears of rent to the plaintiff and also direct the third defendant and other members of her family to vacate and hand over possession of the building to the plaintiffs within a short time. The first defendant agreed to treat the mortgage as completely discharged by adjustment of a portion of the rent due by them to the plaintiffs, inasmuch as the plaintiffs had already paid Rs.9,312-50 on 15-10-1989. The plaintiffs had also accepted the said suggestion as the mortgage was thus treated as fully discharged. The first defendant promised to make necessary endorsement of discharge and cancel the bond and return the discharge bond through the third defendant and the plaintiffs simply believed her in good faith and had no reason to suspect her bona fides. But the first defendant did not keep up her word and she left for U.S.A. without any settlement.

32. It was also further pleaded that in the month of March 1990 plaintiffs 1 to 4 along with some mediators approached the first defendant and informed him that at least one portion of the building, either the upstair or downstairs, should be immediately vacated and made available to the plaintiffs for their immediate occupation, as they were being put to lot of inconvenience and trouble. The third defendant spoke to the first defendant on phone and requested the plaintiffs to give him a couple of months to seek alternative accommodation, to vacate and to pay arrears of rent as instructed by his sister. As the third defendant simply put off the matter, plaintiffs and other elders again went to him in June and July 1990 and requested to vacate the premises. The third defendant stated to them that his sister was visiting India shortly and requested them not to take any legal action.

33. Further it was pleaded that as things stood thus, the third defendant in collusion with his sister, the first defendant, got issued a registered legal notice, dated 11.8.1990, to the plaintiffs 1 to 4 with false allegations and setting up a false oral agreement of sale, dated 16.2.1987, and demanding the execution and registration of a sale deed in his favour within a week days and threatening to file a suit for specific performance in default of compliance. The third defendant without waiting for reply had filed O.S. No.149 of 1990 basing on the alleged oral agreement of sale. It was also stated that the plaintiffs never leased out the premises to the third defendant. The third defendant was only a student at the time the first defendant was inducted into possession as tenant. Defendants 1 and 2 are alone the tenants of the plaintiffs. The third defendant was only staying with them as member of the first defendant’s family with her permission along with other brothers and there was never any relationship of landlord and tenant between the plaintiffs and the third defendant. The plaintiffs are claiming arrears of rent from 01.6.1990 to 31.5.1993 as the arrears of rent due from 01.01.1987 to 31.5.1990 were barred by time.

34. It was also pleaded that the plaintiffs got issued a quit notice, dated 11.7.1991, to defendants 1 to 3 for the second time when she came to India in July, 1991, calling upon her to vacate and deliver possession of the plaint schedule building and called the third defendant to vacate and pay the arrears by 31.7.1991. The first defendant received the said quit notice on 16.7.1991, but failed to vacate and pay the arrears. Instead, she got issued a reply notice dated 30-7-1991 through her advocate along with the third defendant denying her tenancy. Hence, the suit.

Averments made in the written statement:

35. The third defendant filed his written statement and defendants 1, 2 and 4 remained ex parte. It was pleaded in the written statement that on 16.2.1987 plaintiffs 1 to 4 and the mother of 4th defendant had offered to sell the plaint schedule property and he agreed to purchase the same for a valuable consideration of Rs.2,00,000/-. The bargain took place in the presence of Md. Khaja Khan, M.J.S. Prasada Rao, N.J. Kumar and G. Jayadeep. As per the terms of the agreement, the third defendant should advance Rs.25,000/- on the same day to meet the marriage expenses of defendant No.4 and that the third defendant shall discharge the registered mortgage deed, dated

15-7-1980, executed by plaintiffs 1 to 4 and the mother of 4th defendant in favour of first defendant and the said document shall be taken as a voucher for the sale deed. The amount due on the mortgage was arrived at Rs.19,500/- and the balance sale consideration of Rs.1,55,500/- was agreed to be paid by the third defendant within 8 months i.e., on or before 16-10-1987. Time is not the essence of the contract. Plaintiffs 1 to 4 and the mother of 4th defendant undertook to get the sale deed executed by Farooq Pasha, whose whereabouts are not known by that time. They agreed to deliver the property on 16-2-1987. In pursuance of the said oral agreement, defendant No.3 issued S.B. cheque No.594863, dated 16.2.1987 for Rs.25,000/- in the name of Md. Pasha, the younger brother of the husband of 4th plaintiff, on the request of plaintiffs 1 to 4 and the mother of 4th defendant.

36. It was further pleaded that the third defendant discharged the mortgage debt of the first defendant as per the terms of the agreement of sale. Since the third defendant had been in possession of the plaint schedule property, the property was delivered to him and the third defendant had been continuing in possession of the building as its owner from 16-2-1987 onwards in pursuance of the agreement of sale.

37. Further it was pleaded that defendant No.3 alone took the ground floor of the building on lease in 1973 from late Md. Maqbool, the maternal luncle of plaintiffs 1 to 4, under whose protection plaintiffs 1 to 4 were living, on a monthly rent of Rs.200/-. In 1977 he took the upstair portion also on a monthly rent of Rs.150/- . Thus, he had been in possession and enjoyment of the ground floor and upstair building since 1977 on a monthly rent of Rs.350/-.

38. It was also further pleaded that in the year 1984 the rent was enhanced to Rs.900/- and he was continuing in possession of the property as its tenant till 16.2.1987 on which date he purchased it under an oral agreement of sale. The third defendant denied the allegations that the plaintiffs’ mother gave the plaint schedule house on lease to defendants 1 and 2 and that he was under the care of the first defendant and he was attending the affairs of defendants 1 and 2. He also denied that the rent was enhanced to Rs.1,100/- in October, 1986, and it was in vogue till 31.12.1988. He also denied the allegations that there were arrears of rent at the rate of Rs.1,100/- per month till 31.8.1987 and that the agreed rent was Rs.1,300/- per month from 01-01-1989 onwards.

39. It was also pleaded that in spite of repeated requests, the plaintiffs failed to execute a registered sale deed after receiving the balance of sale consideration. He had been in possession of the building in his own right as a purchaser and the plaintiffs had to be blamed for their non-cooperation in executing the sale deed after receiving the balance of sale consideration. The plaintiffs had filed the suit after filing O.S. No.149 of 1990 as a counterblast.

40. Issues settled by the trial court:

(1)Whether the defendants 1 to 3 are liable for eviction as prayed for?

(2)Whether the rent is Rs.1,300/- per month as contended by plaintiffs? If not, what is the quantum of rent?

(3)Whether the plaintiffs are entitled to arrears of rents claimed?

(4)Whether the court fee paid is not correct?

(5)Whether the civil court has no jurisdiction to order eviction of defendants 1 to 3?

(6)To what relief?

41. Common evidence was recorded in O.S. No.149 of 1990 with the consent of the parties and the same was treated as evidence in O.S. No.135 of 1993 as well.

42. Evidence available on record:

Appendix of evidence

Witnesses examined

For plaintiffs:

P.W.1: N. Williams

P.W.2: Neelam Rajaratnabai

P.W.3: M.J.S. Prasad

P.W.4: Md. Khajakhan

P.W.5: Goteti Jayadeep

P.W.6: Md. Suleman

For defendants:

D.W.1: M. Mujahdur Rehman

D.W.2: Md. Ikbal Pasha

D.W.3: Md. Elyas Ur Rehman

D.W.4: Md. Madar Khan

D.W.5: U. Siva Prasad

D.W.6: Asia Begum

D.W.7: Md. Aslaf Pasha

D.W.8: Harun Pasha

D.W.9: Samudrala Chandrasekhara Rao

Documents marked

For plaintiffs:

Ex.A-1/16.2.1987: Counterfoil of the cheque bearing No.A/17-594863 for Rs.25,000/-.

Ex.A-2/24.8.1987: Letter written by Raja Ratnabai to plaintiff

Ex.A-3/15.7.1980: Mortgage deed executed by defendant No.1 to 4 and mother of defendant No.5 in favour of the sister of plaintiff.

Ex.A-4/17.6.1969: Discharged mortgage deed executed by Abdul Razaq, the father of defendant Nos.1 to 4 in favour of Potluri Vasanthika Devi.

Ex.A-5/6.8.1966: Registered relinquishment deed

Ex.A-6/16.6.1969: Khararunama to show that an amount of Rs.5,000/0 was paid by Razaq in pursuance of Ex.A-5.

Ex.A-7/20.2.1941: Registration extract of the partition deed

Ex.A-8/:Basic value of the schedule property

Ex.A-9/:Pocket notebook to show that defendant No.2 received rents from P.W.1.

Ex.A-10/1.8.1990: Office copy of the legal notice got issued by plaintiff to defendants 1 to 4.

Ex.A-11/:Acknowledgment of defendant No.2 having received Ex.A-10 legal notice.

Ex.A-12/14.8.1990: Office copy of complaint given by the plaintiff to the police.

Ex.A-13/17.8.1990: Office copy of complaint given by the plaintiff to the police.

Ex.A-14/15.10.1983: Part payment endorsement made on Ex.A3.

For defendants:

Ex.B-1/11.8.1990: Registered legal notice got issued by the plaintiff to defendant No.2.

Ex.B-2/27.8.1990:Reply notice issued by defendants to Ex.B-1 registered notice.

Ex.B-3/:Acknowledgment having received Ex.B-2 notice by Sri D. Harinarayana Murthy, counsel for the plaintiff.

Ex.B-4/29.9.1990: Quit notice got issued by the defendants to defendant Nos.1 to 3 in O.S.135/1993.

Ex.B-5/:Acknowledgment having received Ex.B-4 notice by the plaintiff.

Ex.B-6/:Acknowledgment having received Ex.B-4 notice by P.W.1.

Ex.B-7/11.7.1991:Quit notice issued to the address of the plaint schedule premises requiring P.W.2 to vacate the premises by 31.7.91 after paying the arrears of rent.

Ex.B-8/:Postal receipt

Ex.B-9/:Acknowledgment having received Ex.B-7 notice by P.W.2.

Ex.B-10/:Plaint schedule house address.

Ex.B-11/30.7.1991: Reply notice got issued by P.W.1, P.W.2 and her husband to the defendants.

Ex.B-12/22.8.1991: Further reply got issued by defendants to the plaintiff.

Ex.B-13/ :Postal receipt

Ex.B-14/ :Acknowledgment having received Ex.B-12 notice.

Ex.B-15/10.12.1990: Registered letter bearing postal No.3139 and 3140 addressed to P.W.2 and her husband to their U.S.A. address.

Ex.B-16/15.1.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-17/28.2.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-18/11.4.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-19/12.12.1990: Letter addressed to Senior Superintendent of Post Offices, Eluru Division by Head Post Master, Eluru by marking a copy to the counsel for D.W.1.

Ex.B-20/15.3.1991: Letter written by Senior Superintendent of Post Offices, Eluru Division, to the counsel for D.W.1.

Ex.B-21/4.6.1991: Letter written by Superintendent of Post Offices, Eluru Division to Sri A. Suryanarayana Rao, Advocate, Eluru.

Ex.B-22/:Valuation certificate.

Ex.B-23/19.8.1998: Sales tax receipt for Rs.100/-having paid towards the renewal fees for the shop of D.W.1 by name Bharath Fancy Emporium.

Ex.B-24/:Voters list of Eluru Municipality for the year 1978 relating to Lakshmivarapupet, issued by the Commissioner, Eluru Municipality.

Ex.B-25/19.8.1998:Voters list of ward No.17 of Eluru Municipality for the year 1981 issued by the Commissioner, Eluru Municipality.

Findings recorded by the trial court in nut-shull:

43. As already aforesaid, common evidence was recorded in O.S. No.149 of 1990 and the plaintiff in O.S. No.149 of 1990 got himself examined as P.W.1. His elder sister was examined as P.W.2 and P.W.3, P.W.4, P.W.5 and P.W.6 also had been examined. Exs.A-1 to A-14 had been marked. On behalf of the defendants in the said suit, the plaintiffs in O.S. No.135 of 1993, D.Ws.1 to 9 were examined, Exs.B-1 to B-25 were marked.

44. The trial court, while answering issue No.2 in O.S. No.149 of 1990, appreciated the evidence available on record, recorded findings at paras 14 to 18 and came to the conclusion that it cannot be said that P.W.1 was the tenant of the defendants. While answering issues 1 and 3 in O.S. No.149 of 1990 the learned Judge further appreciating the evidence available on record and also after referring to the under noted decisions

1. A.I.R. 1968 SC 1028

2. A.I.R. 1971 SC 1021

3. A.I.R. 1978 Allahabad 212

4. 1990 (1) L.S. (S.C.) 17

5. A.I.R. 1991 Delhi 315

6. 1993 (2) A.L.T. 193 (D.B)

7. 1997 (4) C.C.C. 232 (A.P.)

8. 1998 (6) A.L.T. 555 (D.B.)

9. 1989 A.L.T. (N.R.C.) 8

10. 1990 (2) L.S. (S.C.) 9

11. 1998 (2) L.S. 118 (D.B.)

12. 1998 (5) A.L.T. 214 (D.B.)

13. 1998 (6) I.L.D. 682

at paras 19 to 68 came to the conclusion that the plaintiff miserably failed to establish the oral agreement of sale. While answering issue No.2 in O.S. No.135 of 1993 the learned Judge recorded reasons in detail at paras 69 to 74 and came to the conclusion that the plaintiffs in O.S. No.135 of 1993 are entitled to claim rent at the rate of Rs.1,300/- per month. While answering issue No.3 in O.S. No.135 of 1993 the learned Judge further recorded reasons at para 75 and came to the conclusion that the plaintiffs in the said suit are entitled to claim arrears of rent at the rate of Rs.1,300/- per month from 01.6.1990 onwards. While answering issue No.1 in O.S. No.135 of 1993 the oral and documentary evidence again had been appreciated at length at paras 76 to 82 and came to the conclusion that the plaintiffs in the said suit are entitled for recovery of the possession of plaint schedule house. Likewise, issue No.4 in O.S. No.135 of 1993 was answered at para 83 and issue No.5 was answered at para 84 and the learned Judge came to the conclusion that inasmuch as the quantum of rent exceeds Rs.1,000/- per month, the Rent Controller has no jurisdiction to entertain the matter. The civil court alone will have jurisdiction. Thus, at para 85 it was observed that O.S. No.149 of 1990 being devoid of merit, the suit to be dismissed with costs. Further while answering issue No.6 in O.S. No.135 of 1993 reasons had been recorded at paras 86, 87 and at para 88 the suit O.S. No.135 of 1993 was decreed with costs as against defendants 1 to 3 with the following terms.

(i)that the defendants 1 to 3 shall vacate the suit premises within six months from the date of this judgment;

(ii)that the plaintiffs 1 to 4 and the 4th defendant are entitled for recovery of the suit amount of Rs.46,800/- being the arrears of rent for the period from 1.6.90 to 31.5.93 with interest at the rate of 6% per annum from the date of suit i.e., 15.9.1993 till realization;

(iii)that the plaintiffs 1 to 4 and the 4th defendant are entitled to recover rents at the rate of Rs.1,300/- per month from 1.6.1993 till realization with interest at the rate of 6% per annum from 1.6.1993 till date of payment; and

(iv)that the amounts paid by he third defendant during the pendency of the suit as per the direction of this court shall be deducted from amounts payable to the plaintiffs 1 to 4 and the 4th defendant.

Points for determination:

45. Since common evidence was recorded in both the suits aforesaid, for the purpose of convenience and for the appreciation of evidence available on record in proper perspective, common points for consideration are being formulated by this Court.

(1)Whether the findings recorded in O.S. No.149 of 1990 disbelieving the oral agreement of sale to be confirmed or to be disturbed or to be modified in the facts and circumstances of the case?

(2)Whether the findings recorded in O.S. No.135 of 1993 by the trial court to be confirmed or to be disturbed or to be modified in the facts and circumstances of the case?

(3)If so, to what relief the parties would be entitled?

Points 1 and 2:

46. For the purpose of convenience these points are being discussed together and the plaintiff in O.S. No.149 of 1990 is the third defendant in O.S. No.135 of 1993 and the unsuccessful plaintiff in O.S. No.149 of 1990 had preferred A.S. No.3091 of 1999 and likewise the said plaintiff in O.S. No.149 of 1990, third defendant in O.S. No.135 of 1993, being aggrieved by the decree and judgment made in O.S. No.135 of 1993 had preferred A.S. No.2194 of 1999.

47. Since common evidence was recorded in O.S. No.149 of 1990, for the purpose of convenience, the parties hereinafter would be referred to as shown in O.S. No.149 of 1990.

48. The respective pleadings of the parties, the evidence available on record and the findings recorded by the trial court in brief already had been referred to supra.

49. P.W.1 deposed that the plaint schedule property in O.S. No.135 of 1995 and O.S. No.149 of 1990 are one and the same and in the year 1973 he had taken ground floor of the schedule house on lease on a monthly rent of Rs.200/- from one Md. Maqbul, who is the maternal uncle of defendant 1 to 4 and 6 in O.S. No.149 of 1990. This witness also deposed that in the year 1977 he had taken first floor also on lease from the said Md. Maqbul on a monthly rent of Rs.150/-, totalling Rs.350/-. He was paying rents to the said Md. Maqbul from 1973 till his demise in the month of May 1978. From June 1978 to February 1987 he paid rents to Muzahid Rehaman (defendant No.2 in O.S. No.149 of 1990 and plaintiff No.2 in O.S. No.135 of 1993).

50. In the year 1990 he enhanced the rent to Rs.50/- and paid rent of Rs.400/- for the ground floor and the first floor till 1984. In 1984 the rent was enhanced to Rs.900/- for the ground floor and first floor. He paid rent till January 1987. In the month of February 1987 D-1 to D-4, D-6 and mother of D-5 by name Kurshid Sultana offered to sell the plaint schedule property for the purpose of meeting the marriage expenses of defendant No.4. The bargain was settled for Rs.2.00 lakhs on 16.2.1987 at the house i.e., plaint schedule house. They entered into agreement on 16.2.1987. Defendants 1 to 4, D-6 and mother of D-5, the would be husband of 4th defendant, and his younger brother by name Md. Pasha, M.J.S. Prasad, Md. Kajakhan, N.J. Kumar and G. Jaideep were present on the date of oral agreement of sale, dated 16.2.1987. He gave a cheque for Rs.25,000/- towards advance in favour of Md. Pasha, the younger brother of the would be husband of defendant No.4. He issued cheque in the name of said Pasha at the instance of second defendant. That amount was given in the form of dowry. He handed over the cheque to defendant No.2. About four days thereafter, defendant No.2 came to him and told him that his cheque was encashed and the amount was received by Pasha and thanked him. Defendants 1 to 4, D-6 and mother of D-5 had agreed that the amount of Rs.25,000/- paid by him by way of cheque will be treated as advance amount out of the sale consideration of Rs.2.00 lakhs. As per the terms and conditions of the oral agreement P.W.1 has to pay balance amount within eight months from the date of oral agreement and obtain regular sale deed. The eldest brother of D-1 to D-4 by name Farooq Pasha was absconding by the date of oral agreement. They represented to him that they would bring their eldest brother Farooq Pasha by the date of regular sale deed and all of them would execute a regular sale deed in his favour.

51. In the year 1980 defendants 1 to 4, D-6 and the mother of D-5 came to him and requested to lend money for redeeming the schedule house from mortgage which was mortgaged in the year 1969. As he had no money then, he advised them to approach his elder sister i.e., defendant No.1 in O.S. No.135 of 1993. Accordingly, his elder sister Neelam Raja Ratnabai lent a sum of Rs.15,000/- to defendants 1 to 4, D-6 and the mother of defendant No.5 and obtained a registered mortgage from them. As per the oral contract, P.W.1 had to get the mortgage of his sister redeemed and the balance amount to be paid to his vendors. As per the terms of the oral agreement he paid the amount covered under the mortgage debt of his sister and redeemed the mortgage. P.W.1 also obtained the title deeds in respect of the schedule property from his sister. P.W.1 always had been ready and willing to pay the balance amount and obtain the regular sale deed.

52. The mother of defendant No.5 died in the year 1990. D-5 is the only daughter to Kurshid Sultana. P.W.1 demanded the defendants to execute a regular sale deed after receiving the balance of the sale consideration payable to them, but they have been postponing the registration on the pretext that their eldest brother was not traced.

53. P.W.1 also further deposed that the mortgage debt on the plaint schedule property was arrived at Rs.19,500/- as on the date of oral agreement of sale, dated 16.2.1987. As per the oral agreement, the balance of sale consideration of Rs.1,55,500/- to be paid by him to the vendors after discharging mortgage debt. Even if the mortgage debt is more than Rs.19,500/- arrived at by the date of agreement of sale, he has to pay the balance of sale consideration of Rs.1,55,500/-. On 16.2.1987 itself his vendors delivered possession of the plaint schedule property and as he was already in possession as tenant and is continued to be in possession.

54. This witness also deposed about the details of payment by way of cheque for Rs.25,000/-. This witness also deposed that his sister wrote a letter, dated 24.8.1987, stating that she received an amount of Rs.20,500/- towards the balance of mortgage debt of the schedule house and that she was sending documents to him. Ex.A-1 is the counterfoil of the cheque bearing No.A/17-594863, dated 16.2.1987, for Rs.25,000/-. Ex.A-2 is the letter dated 24.8.1987 written by his sister Raja Ratnabai to him. His sister sent mortgage deeds and title deeds in respect of the plaint schedule property along with Ex.A-2 letter. Ex.A-3 is the mortgage deed, dated 15.7.1980, executed by defendants 1 to 4 and mother of D-5 in favour of his sister Raja Ratnabai. Ex.A-4 is the discharged mortgage debt deed, dated 17.6.1969, executed by Abdul Rajaq, the father of D-1 to D-4 in favour of Potluri Vasanthika Devi. Ex.A-5 is the registered relinquishment deed dated 6.8.1966. Ex.A-6 is the Khararnama, dated 16.6.1969, to show that an amount of Rs.5,000/- was paid by Rajaq in pursuance of Ex.A-5 (Ex.A-6 was marked subject to objection raised by the counsel for the defendants). Ex.A-7 is the registration extract of the partition deed dated 20.2.1941.

55. P.W.1 also deposed that he purchased the plaint schedule property for a valid consideration of Rs.2.00 lakhs. This witness also deposed about Ex.A-8 basic value certificate relating to plaint schedule property. Ex.A-9 is the pocket notebook to show that defendant No.2 received rents from him. Ex.A-10 is the legal notice. Ex.A-11 is the acknowledgment.

56. This witness also deposed that when there was threat of illegal dispossession, he gave a complaint to police. The office copy of the complaint is Ex.A-12 marked, no doubt, subject to objection. Again he gave a complaint to police which was marked as Ex.A-13 marked subject to objection. This witness also deposed that he was been always ready and willing to perform his part of contract i.e., payment of balance of sale consideration and obtain registered sale deed.

57. This witness also deposed that defendant No.1 in O.S. No.135 of 1993 is his elder sister. Defendant No.2 is her husband and they had gone to U.S.A. and they had never taken the plaint schedule property on lease and they never resided therein as tenants. Several details relating to his sister and brother-in-law also had been spoken to P.W.1.

58. This witness was cross-examined in elaboration. This witness in cross-examination reiterated the stand in chief-examination. It is pertinent to note that P.W.1 was cross-examined on 22.1.1998. P.W.2 was examined on 01.01.1998. It is needless to say that P.W.1 was cross-examined after the examination of P.W.2. No doubt, certain reasons had been given in this regard. P.W.1 denied several suggestions relating to the entries made in Ex.A-9 and also relating to the payment of rents as well. This witness deposed in cross-examination that the reason for keeping eight months time was that Farooq (D-6) was not to be seen and that defendants 1 to 4 and the mother of D-5 have to get the property redeemed from their mortgage.

59. This defendant also deposed that it is not true to say that the amount of Rs.25,000/- is only a financial accommodation in connection with the marriage of D-4 to be adjusted from out of the rents payable by him. This witness also deposed that he told his advocate at the time of drafting the plaint as to when he discharged Ex.A-3 mortgage debt and how much amount he paid. He does not remember the exact date when he paid mortgage debt covered under Ex.A-3. He paid Rs.20,000/- towards the mortgage debt covered under Ex.A-3. He gave particulars of payment of the mortgage debt covered by Ex.A-3 to his advocate at the time of drafting the plaint. But, he does not know why he did not mention those particulars in the plaint. This witness also deposed that he paid an amount of Rs.20,500/- in cash to his eldest brother Charles on the direction of his sister (P.W.2). This witness also deposed that defendants 1 to 4 never asked him to make efforts to find out the whereabouts of defendant No.6. No doubt, the suggestions put to this witness relating to the oral agreement also had been specifically denied.

60. P.W.1 also deposed that he purchased the plaint schedule property for a valid consideration of Rs.2.00 lakhs. This witness also deposed about Ex.A-8, basic value certificate, relating to plaint schedule property. Ex.A-9 is the pocket notebook to show that defendant No.2 received rents from him. Ex.A-10 is the legal notice. Ex.A-11 is the acknowledgment. This witness also deposed that when there was threat of illegal dispossession, he gave a complaint to police. The office copy of the complaint is Ex.A-12 marked, no doubt, subject to objection. Again he gave a complaint to police which was marked as Ex.A-13 marked subject to objection. This witness also deposed that he has been always ready and willing to perform his part of contract i.e., payment of balance of sale consideration and obtain registered sale deed. This witness also deposed that defendant No.1 in O.S. No.135 of 1993 is his elder sister. Defendant No.2 is her husband and they had gone to U.S.A. and they had never taken the plaint schedule property on lease and they never resided therein as tenants. Several details relating to his sister and brother-in-law also had been spoken to P.W.1.

61. The oral agreement of sale had been specifically denied. Md. Pasha to whom the cheque for Rs.25,000/- was given by P.W.1 is the younger brother of the husband of defendant No.4. They do not know the issuance of alleged cheque by P.W.1 to Md. Pasha. That transaction has nothing to do with them. P.W.1 never delivered the cheque for Rs.25,000/- to D.W.1. This witness also deposed that P.W.1 is the first attestor to Ex.A-3 mortgage bond. His mother’s younger sister Asiya Begum signed as second attestor on Ex.A-3. On 15.10.1983 as per Ex.A-14 endorsement on Ex.A-3 they paid a sum of Rs.7,312-50 ps. towards interest by that date and a sum of Rs.2,000/- towards the principal totalling Rs.9,312-50 ps. to P.W.2. This witness along with P.W.2 signed on Ex.A-14 endorsement. P.W.1 signed as attestor to Ex.A-14 endorsement. P.W.2 never issued any notice to them demanding them for payment of her mortgage debt due by them under Ex.A-3 mortgage bond. They had no other debts except the debt covered by Ex.A-3. There was no pressing urgency for selling the house. Exs.A-4 to

A-7 are the earlier title deeds. These were delivered to P.W.2 at the time of executing Ex.A-3 mortgage bond as vouchers. P.W.2 kept Exs.A-3 to A-7 with her brother (P.W.1) while leaving for U.S.A.

62. This witness also further deposed about Ex.A-9 in detail. This witness further deposed that P.W.2 was very irregular in payment of rents. This witness also deposed that in O.S. No.135 of 1993 they filed an application for appointment of Receiver to take possession of the plaint schedule property and to deposit rents and a direction was given to deposit a sum of Rs.1000/- per month from the date of order towards rent. P.W.1 filed revision before this Court and this Court dismissed the said petition filed by P.W.1. They also filed C.M.A. before this Court against the order made by the Subordinate Judge, Eluru. Both the matters were heard by this Court and this Court directed to dispose of the suit expeditiously and permitted them to withdraw the rents deposited.

63. This witness also deposed that P.W.2 never informed that P.W.1 had discharged the mortgage debt covered under Ex.A-3 and that she sent back Ex.A-3 mortgage bond along with Exs.A-4 to

A-7 to P.W.1. This witness also deposed that P.W.2 was assuring them not to worry about the arrears of rent. She would come and pay the arrears of rent after adjusting part of arrears of rent towards the debt covered under Ex.A-3 and she was promising to return Ex.A-3 duly discharged along with Exs.A-4 to Ex.A-7 and that she would vacate the premises. This witness also deposed that they believed her representation.

64. This witness also deposed that Ex.B-1 was the notice got issued by P.W.1 and he received the same. Prior to Ex.B-1 notice P.W.1 never claimed that he was the tenant of the plaint schedule premises and that he had an oral agreement, dated 16.2.1987, in his favour. They gave reply to Ex.B-1. The office copy of reply notice is dated 27.8.1990 marked as Ex.B-2. Ex.B-2 was sent by registered post to the advocate of P.W.1 who had acknowledged the same under Ex.B-3. P.W.1, without waiting for their reply, filed O.S. No.149 of 1990 on 22.8.1990 with all false allegations.

65. On 29.9.1990 they got issued quit notice to defendants 1 to 3 in O.S. No.135 of 1993 i.e., P.W.1, P.W.2 and the husband of P.W.2. The office copy of which was marked as Ex.B-4. Ex.B-4 was sent to P.W.2 and her husband and Ex.B-4 was sent to P.W.1 to his Eluru address. They issued Ex.B-4 notice requiring P.W.2 and her husband to vacate the suit premises and also to pay arrears of rent. He can identify the signature and hand writing of P.W.2 and her husband. On 19.10.1990 P.W.2 acknowledged Ex.B-4 notice and the acknowledgment was marked as Ex.B-5. Ex.B-6 is the acknowledgment of P.W.1 having received Ex.B-4 notice. The office copy of quit notice, dated 11.7.1991, was marked as Ex.B-7. Ex.B-8 is the postal receipt. P.W.2 received Ex.B-7 notice on 16.7.1991 and the acknowledgment was marked as Ex.B-9. This witness also sent Ex.B-7 quit notice by certificate of posting to P.W.2 to the plaint schedule house address and the same was marked as Ex.B-10. P.W.1 and P.W.2 and her husband gave reply to the notices. The same was marked as Ex.B-11. The reply given to the said notice was marked as Ex.B-12. Ex.B-13 is the postal receipt. Ex.B-14 is the acknowledgment.

66. This witness also deposed about the Xerox copy of the letters and about the complaint through his advocate to the Head Post Master, Eluru, regarding the registered letter bearing postal Nos.3139 and 3140, dated 29.9.1990, addressed to P.W.2 and her husband to their address at U.S.A. The office copy of the same was marked as Ex.B-15. The three reminders had been marked as Ex.B-16, Ex.B-17 and Ex.B-18 on 12.12.1990. The Post Master, Eluru, addressed a letter to the Senior Superintendent of Post Offices, Eluru Division, by marking a copy to his advocate. It is marked as Ex.B-19. On 15.3.1991 the Senior Superintendent of Post Offices, Eluru Division, sent a letter to his advocate stating that the registered letters, dated 29.9.1990, were correctly dispatched to the destination on 04.10.1990 with covers. The same was marked as Ex.B-20. This witness also specifically deposed about the rent being Rs.1,300/-. This witness was cross-examined at length.

67. This witness deposed that the Xerox copy of the cheque shown to him is not in his hand writing. This witness also deposed that he was receiving rents for the entire plaint schedule house on behalf of the family members. P.W.1 paid rents on behalf of P.W.2 and on her husband only. This witness also deposed that they did not obtain any letter in writing either from P.W.1 or P.W.2 that they agreed to pay rent at the rate of Rs.1,100/- per month or Rs.1,300/- per month.

68. Defendant No.1 examined himself as D.W.2 and this witness supported the version of D.W.1. D.W.3 also deposed in support of the version of D.W.1. But however, this witness deposed that the second defendant D.W.1 told him that they took Rs.25,000/- from P.W.1 as rent advance in connection with the marriage of D-4. In cross-examination also this witness reiterated the same stand. Ex.B-21 is the letter written by the Superintendent of Post Offices dated 04.6.1991. Ex.B-22 is the valuation certificate. Ex.B-23 is the sales tax receipt. Ex.B-24 and Ex.B-25 are the voters list.

69. In Gomi Bai and others v. Uma Rastogi and another (2005 (2) ALD 631) learned Judge of this Court while dealing with the relief of specific performance on the strength of an oral agreement of sale observed at paras 22 and 26 as hereunder.

“In a suit for specific performance, plaintiff has to properly plead and prove existence of contract, the terms of contract and other requirements of law. The terms of the contract should be terms which are settled between plaintiff and defendant and they should not be vague or inconsistent. In the case of oral contract, the terms of the contract assume more importance and therefore it would be proper for the plaintiff to set out all the terms of such contract in the plaint itself. In the absence of such terms, especially in the cases of oral contact, it would not be possible for the parties to the suit as well as the Court to appreciate rival contentions. Indeed, as per form Nos. 47 and 48 of First Schedule to CPC, in suit for specific performance plaintiff has not only aver that he/she is ready and willing to perform his/her part of contract, but he/she made demand on the vendors to complete vendors part of the contract. A reference may be made to Ouseph Varghese v. Joseph Aley, (1969)2 SCC 539, Abdul Khadir Rowther v. P. K. Sara Bai, AIR 1990 SC 682, and Manjunath Anandappa v. Tammanasa, AIR 2003 SC 1391.

In this appeal, the appellant did not set out the terms of oral agreement in plaint nor did she make a demand on the respondents/vendors to execute sale deed before filing the suit. What all she alleged in the plaint is that she paid advance amount of Rs.3,000/- and the balance amount of Rs.7,000/- to the vendors, that agreement was obtained by her husband that she was put in possession, that she was nominated by her husband. The other terms of the contract settled between the parties as required under Section 54 of the transfer of Property Act are not even referred to except the sale consideration and the extent of the land. On the one hand, appellant pleads that her husband obtained agreement and on the other hand she pleads that the respondents agreed to execute sale deed in her favour. At some other place, she pleads that her husband nominated her to get the sale deed registered in her favour. The stand is quite inconsistent. In the written statement, the respondents denied any oral agreement of sale and therefore the burden was very heavy on the plaintiff to prove the case as pleaded. As she came to the Court with inconsistent pleas and did not take steps for properly amending the plaint though she amended introducing the theory of nomination it has to be concluded that existence of oral agreement is doubtful. Whether the plaintiff proved existence of oral agreement?”

70. In Brij Mohan and others v. Smt. Sugra Begum and others (1990 (2) LS (SC) 9) it was held that there was no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad-idem between the parties for a concluded oral agreement for sale of immovable property.

71. Reliance also was placed on the decisions in Abdul Rasheed v. Abdul Hakeem (1998 (6) ALD 682); Radha Bai v. Yasoda Bai (1998 (6) ALT 555) and Kollipara Sri Ramulu (dead) by his legal representative v. T. Aswatha Narayana (AIR 1968 SC 1028).

72. Reliance also was placed on the decision in Arjunlal Bhatta Mall Gothani v. Girish Chandra Dutta (AIR 1973 SC 2256) wherein the Apex Court held that under clause 5 of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even one instalment having been paid the question of forfeiture does not arise and no notice was necessary for cancelling agreement. It stood automatically cancelled.

73. Further strong reliance was placed on the decision in Peri Bhaskara Rao v. Sathi Adilakshmi (AIR 2006 AP 212) wherein at para 12 it was observed as hereunder.

“The mere fact that separate written statements were filed but the cross-examination was common and the mere admission by DW-2 that 8th defendant had been looking after the litigation and the mere fact that the brothers and sisters have been affectionate, these factors by themselves cannot be taken as a inference so as to draw the concept of either implied agency or the concept of ratification into it for the purpose of making non-parties to Ex. A-1 also liable under the said transaction entered into by the parties to Ex. A-1. This evidence available on record in the considered opinion of this Court is insufficient so as to fasten the liability as against the non-parties to the agreement of sale in question.”

74. Reliance also was placed on the decision of the Larger Bench of this Court in Ramvilas Bajaj v. Ashok Kumar (2007 (4) ALD 137).

75. The case of P.W.1 is that he had been the tenant subsequent to the earlier agreement of sale. He has been continuing in the plaint schedule house as owner. It is also his case that he purchased the plaint schedule house for Rs.2,00,000/- under an oral agreement of sale on 16.2.1987. On the date of oral agreement of sale on 16.2.1987 it is his case that he gave a cheque for Rs.25,000/- by way of advance in favour of Md. Pasha, the younger brother of the would be husband of 4th defendant, as directed by D.W.1. It is also his case that the said amount was given to Md. Pasha in the form of dowry in relation to the proposed marriage.

76. It is also his case that he has to discharge the mortgage debt due to his sister P.W.2 and the amount was calculated as Rs.19,500/- by the date of oral agreement of sale and the balance of sale consideration of Rs.1,55,500/- to be paid within eight months from the said date of the alleged oral agreement of sale. It is also his case that he had discharged the mortgage debt paying Rs.20,500/- to P.W.2 within eight months from the date of the said oral agreement of sale and, thus, his status as tenant had been changed into one of owner and possession was being continued as owner thereof subsequent thereto.

77. The evidence of P.W.2 is no doubt in support of the version of P.W.1. P.W.2 was examined on 01.01.1998. P.W.1 was cross-examined on 22.01.1998 and no doubt subsequent thereto on different dates. P.W.2, no doubt, had taken the stand that her brother Williams P.W.1 had taken the premises on lease in the year 1973 and this witness also deposed about the discharge of mortgage amount. This witness deposed as though she was never a resident of Eluru. Exs.B-24 and B-25 had been specifically pointed out to convince this Court that the stand taken by P.W.2 in this regard cannot be believed. The evidence of P.Ws.3 to 6 also had supported the stand taken by P.W.1 and P.W.2 as well.

78. P.W.3 was working as Lock Superintendent in Irrigation Department on the alleged date of the oral agreement of sale and his house is at a distance of 1 km. from the plaint schedule house and P.W.3 had not produced any evidence to show that he was working at Eluru at the relevant point of time. He, in fact, worked at Eluru. It is also pertinent to note that P.W.1 is a well known person of the locality and there are certain admissions made by P.W.3 even in this regard. This witness also deposed that he had gone to the plaint schedule house in a casual visit and subsequent to 16.2.1987, for the first time, he has been telling about the oral transaction between P.W.1 and his vendors before the Court. No doubt, this witness deposed that he does not know how the mortgage amount to be discharged had been calculated. It is not the case of P.W.1 that P.W.1 had made a request to these witnesses to come to the residence on the ground that an oral agreement of sale was going to be entered into. The evidence of P.W.4 is that he had gone to the house of P.W.1 to discuss with P.W.1 about municipal elections and at the relevant point of time the oral agreement of sale had been entered into and a cheque was given by P.W.1 for Rs.25,000/-.

79. This witness also deposed about the agreement entered into in relation to the redemption of the mortgage debt as well. The evidence of P.W.4 relating to the time also is contradictory when the evidence of P.W.1 is to be carefully examined. P.W.1 in cross-examination deposed that the sale talks had taken place in the plaint schedule house between 10.00 a.m. to 12.00 noon. P.W.4 further deposed in cross-examination that the defendants came to the house of P.W.1 about 12.00 noon and the talks relating thereto went on till 4.00 p.m. It is not in serious controversy that P.W.1 has been residing in the house constructed in the municipal site. P.W.1 was the Chairman of the Eluru Municipality for one term and in the light of the same, weight to be attached to the evidence of P.W.4 in this regard need not be over emphasized.

80. The name of P.W.5 had not been specified in Ex.A-10 notice. Though P.W.1 deposed about the sale talks having been held on different dates, this time was not taken by P.Ws.3 to 5. It is pertinent to note that D.W.1 specifically denied the oral agreement of sale and also denied the alleged tenancy as set up by P.W.1 and had taken a specific stand that P.W.2 alone has been the tenant of the plaint schedule property. P.W.1, no doubt, deposed that he delivered the cheque for Rs.25,000/- to D.W.1. P.W.1 also deposed that the cheque for Rs.25,000/- had been filled up and written by D.W.1 and this aspect was not established. On the request of P.W.1, the trial court had sent for the original cheque bearing No.594863, dated 16.2.1987, from the State Bank of India, Eluru Branch. The manager of the said bank produced the said cheque on 16.8.1996. It is not in controversy that the said cheque was not marked. But however, the trial court had taken judicial notice of the same and recorded certain findings in this regard as well.

81. There cannot be any doubt, whatsoever, that Md. Pasha had nothing to do with the plaint schedule property and a total stranger to this family. The contents of Ex.A-10 and the evidence of D.W.1 and D.W.3 also had been appreciated in elaboration and findings had been recorded by the trial court in this regard. It is also pertinent to note that in the plaint there is no averment that the amount covered by Ex.A-1 was given towards dowry. The version in Ex.A-10 and the subsequent deviations and improvements also had been pointed out and the absence of several details in relation to the oral agreement of sale also had been specifically pointed out.

82. P.W.3 had not deposed about Md. Pasha at all as the person in whose favour the cheque was issued by P.W.1 and this witness also did not depose about D.W.1 in turn delivering the cheque to Md. Pasha. P.W.4 also admitted in cross-examination that P.W.1 had not obtained any acknowledgment from second defendant having delivered the cheque for Rs.25,000/- to him. P.W.1 in cross-examination deposed that he does not know the name of the person in whose favour the cheque for Rs.25,000/- was prepared and issued. He cannot give the number of the cheque and also the details thereof. It is pertinent to note that D.W.1 and D.W.2 specifically denied the very entering into of any oral agreement of sale whatsoever. It is needless to say that when a suit is instituted on the strength of an oral agreement of sale, the plaintiff in such a suit is expected to plead all the details very carefully and very cautiously. It is also needless to say that the relief of specific performance being discretionary relief when all the facts are not put forth clearly before the court and when the court entertains a doubt relating to the bona fides or is satisfied that P.W.1 had not approached the court with clean hands and suppressed some truth, such discretionary relief can be refused.

83. Relating to the discharge of Ex.A-3 mortgage debt, it is pertinent to note that subsequent to the alleged oral agreement of sale, dated 16.2.1987, Ex.A-10 notice dated 11.8.1990 is of the earliest point of time. The contents of Ex.A-10 if carefully examined and the evidence available on record if carefully analyzed, there cannot be any doubt, whatsoever, that there are several omissions and improvements and several of the facts which are not pleaded had been further improved, may be, on the ground that these are evidentiary details.

84. The evidence of P.W.2 is that the mortgagors made a part payment of Rs.9,312-50 ps. on 15.10.1983 and made Ex.A-14 endorsement towards Ex.A-3 mortgage debt. P.W.2 also deposed that the said amount covered by the mortgage deed was discharged by P.W.1 in the year 1987. P.W.1 paid Rs.20,500/- towards entire mortgage debt and P.W.1 told her that he had purchased the plaint schedule property and, hence, he was discharging the said mortgage debt. She had sent title deeds and the mortgage bond Exs.A-3 to A-7 through one Woorlidge of Switzerland to P.W.1 and a separate letter sent along with the documents was marked as Ex.A-2.

85. This witness deposed in cross-examination that she does not remember whether she had issued any legal notice demanding the balance of amount under Ex.A-3. This witness also deposed that P.W.1 had written a letter to her informing her that P.W.1 purchased the plaint schedule property. P.W.1 had not deposed about this letter. P.W.2 also deposed that the alleged vendors of P.W.1 also never had written any letter whatsoever informing about the sale of house or would the fact that in the light of the alleged oral agreement of sale P.W.1 would discharge the mortgage debt.

86. The evidence of P.W.2 if analyzed carefully would definitely reflect the fact that the stand taken by P.W.2 is unnatural and may be blood is thicker than water and, hence, P.W.2 had chosen to support the version of P.W.1 in this regard, may be, so as to strengthen the theory of oral agreement of sale. This is only a conclusion that can be arrived at in the facts and circumstances of the case.

87. Elaborate submissions were made relating to Ex.A-2 letter and why the same had been thought of. Findings in detail had been recorded in relation to the other oral evidence available on record, D.W.1, D.W.2 and D.W.3 and apart from this evidence D.Ws.4 to 9 as well. No doubt, the evidence of D.W.3 which may probablize the payment of Rs.25,000/- had been pointed out and elaborate submissions had been made. This admission of D.W.3 by itself cannot be a ground to believe the stand taken by P.W.1 when there are so many inconsistencies and contradictions in the evidence of P.Ws.1 to 6 relating to the alleged oral agreement of sale, relating to the payment of Rs.25,000/- by way of cheque, relating to the alleged discharge of the mortgage debt in pursuance of the terms of the alleged oral agreement of sale said to have been entered between P.W.1 and his vendors.

88. Apart from the oral evidence available on record, the trial court also appreciated Ex.A-4, the discharged mortgage debt, dated 17.6.1969, Ex.A-5 registered relinquishment deed dated 06.8.1966, Ex.A-6 Khararunama dated 16.6.1969, Ex.A-7 registration extract of the partition deed dated 20.2.1941, Ex.A-8 basic value of the schedule property, Ex.A-9 pocket notebook to show that defendant No.2 received rents from P.W.1, Ex.A-10 office copy of legal notice, Ex.A-11 acknowledgment of D.W.1 receiving Ex.A-1 notice, Ex.A-12 office copy of the complaint dated 14.8.1990, Ex.A-13 office copy of the complaint dated 17.8.1990 and Ex.A-14 part payment endorsement made on Ex.A-3 as well.

89. It may be appropriate to have a glance at the contents of Ex.A-10 as well and the said contents read as hereunder.

“Under instructions of our client Sri Neelam Williams, s/o Gabrial of Lakshmivarapupeta, Eluru we issue this registered notice to you.

No.1 to 4 of you and late Kurshid Sultana are the owners of the upstair building and tiled shed bearing T.S. No.453 and 454 of an extent of 700 square yards of site situated at Lakshmivarapupet at Eluru. When all of you are young and under the protection and care of your maternal uncle late Md. Maqbal, our client took on lease the ground floor of the upstair building in the year 1973 from late Md. Maqbal on the condition of paying Rs.200/- per month payable by 1st of every succeeding month. In 1977 our client took on lease the upstair portion also on the condition of paying Rs.150/- per month as rent. Thus from 1977 our client has been paying Rs.350/- for the entire building and site. In 1984 the said rent was increased to Rs.900/- and our client has been in occupation of the building and site as tenant till 16.2.1987.

Nos.1 to 4 of you and late Kulshid Sultana offered to sell and our client agreed to purchase the said building belonging to you for a valuable consideration of Rs.2,00,000-00. The said agreement took place in the presence of Md. Khaza Khan, one Sri M.J.S. Prasada Rao and N.J. Kumar. Our client agreed to purchase the same and in fact he issued S.B. cheque No.594863, dated 16.2.87 for Rs.25,000/- in the name of Md. Pasha who is the husband’s brother of No.4 of you at the request of all of you and late Kulshid Sultana. The said amount is utilised by all of you as pasupu-kumkuma at the time of the marriage of No.4 of you. As per the agreement our client has to discharge a simple mortgage deed dated 15.7.80 executed by all of you and Kulshid Sultana in favour of our client’s sister Neelam Raja Ratna Bai and the said deed has to be taken as voucher for the sale deed to be executed. An amount of Rs.19,500/- was due to Raja Ratna Bai by 16.2.87 and the balance amount of Rs.1,55,500/- is agreed to be paid by our client within 8 months i.e., before 16.10.87. It is also one of the terms that time is not the essence of the contract. On 16.2.87 the property was delivered to our client and our client has been continuing in possession of the building as owner thereof and ceased to be the lessee. You also agreed that the eldest son of late Razak, Sri P. Pasha should be made to execute the sale deed and receive the sale consideration.

Our client made ready the balance of sale consideration within the stipulated time and requested you all to execute a registered sale deed along with the eldest son of late Razak and the heirs of Kulshid Sulthana. But you are postponed to do so on some pretext or other. Our client is ready and willing to perform his part of the contract while you neglected to perform your part of the contract.

Under these circumstances our client calls upon you to execute a registered sale deed in pursuance of the oral agreement of sale dated 16.2.87 after receiving the balance of sale consideration within one week from the date of the receipt of this registered notice failing which our client will be constrained to file a suit against you for specific performance of the oral agreement of sale dated 16.2.87 and recover all reliefs open under law.”

90. The contents of Ex.A-10 being self-explanatory and contradictory stands taken by P.Ws.1 to 5 in particular in deviation of the earliest version as shown in Ex.A-10 also would assume importance in appreciating the stand of P.W.1 relating to the alleged oral agreement of sale.

91. On the aspect of jurisdiction of the civil court, several contentions had been raised and argued in elaboration and it is true that except the oral evidence available on record relating to the periodical enhancement of rent and some entries made in Ex.A-9 as well, there is no clear evidence relating to the actual quantum of rent. Apart from the oral evidence of D.Ws.1 to 9, Exs.B-1 to B-25 also had been appreciated.

Ex.B-1/11.8.1990: Registered legal notice got issued by the plaintiff to defendant No.2.

Ex.B-2/27.8.1990: Reply notice issued by defendants to Ex.B-1 registered notice.

Ex.B-3/:Acknowledgment having received Ex.B-2 notice by Sri D. Harinarayana Murthy, counsel for the plaintiff.

Ex.B-4/29.9.1990: Quit notice got issued by the defendants to defendant Nos.1 to 3 in O.S.135/1993.

Ex.B-5/:Acknowledgment having received Ex.B-4 notice by the plaintiff.

Ex.B-6/:Acknowledgment having received Ex.B-4 notice by P.W.1.

Ex.B-7/11.7.1991: Quit notice issued to the address of the plaint schedule premises requiring P.W.2 to vacate the premises by 31.7.91 after paying the arrears of rent.

Ex.B-8/:Postal receipt

Ex.B-9/:Acknowledgment having received Ex.B-7 notice by P.W.2.

Ex.B-10/:Plaint schedule house address.

Ex.B-11/30.7.1991: Reply notice got issued by P.W.1, P.W.2 and her husband to the defendants.

Ex.B-12/22.8.1991: Further reply got issued by defendants to the plaintiff.

Ex.B-13/ :Postal receipt

Ex.B-14/ :Acknowledgment having received Ex.B-12 notice.

Ex.B-15/10.12.1990: Registered letter bearing postal No.3139 and 3140 addressed to P.W.2 and her husband to their U.S.A. address.

Ex.B-16/15.1.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-17/28.2.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-18/11.4.1991: Reminder got issued by D.W.1 to Head Post Master with regard to Ex.B-15 complaint.

Ex.B-19/12.12.1990: Letter addressed to Senior Superintendent of Post Offices, Eluru Division by Head Post Master, Eluru by marking a copy to the counsel for D.W.1.

Ex.B-20/15.3.1991: Letter written by Senior Superintendent of Post Offices, Eluru Division, to the counsel for D.W.1.

Ex.B-21/4.6.1991: Letter written by Superintendent of Post Offices, Eluru Division to Sri A. Suryanarayana Rao, Advocate, Eluru.

Ex.B-22/:Valuation certificate.

Ex.B-23/19.8.1998: Sales tax receipt for Rs.100/-having paid towards the renewal fees for the shop of D.W.1 by name Bharath Fancy Emporium.

Ex.B-24/:Voters list of Eluru Municipality for the year 1978 relating to Lakshmivarapupet, issued by the Commissioner, Eluru Municipality.

Ex.B-25/19.8.1998: Voters list of ward No.17 of Eluru Municipality for the year 1981 issued by the Commissioner, Eluru Municipality.

92. It is pertinent to note that P.W.1 was young at the relevant point of time and it is but unnatural that he would have thought of taking the plaint schedule premises on lease. P.W.2, no doubt, had taken a stand that she was never a resident of Eluru and it is P.W.1 who had taken the house in question on lease. But the stand taken by P.W.2 cannot be believed especially in the light of Ex.B-24 and Ex.B-25.

93. On appreciation of evidence available on record, the trial court recorded findings in detail relating to the quantum of rent and came to the conclusion that the Rent Controller has no jurisdiction and the Civil Court alone has jurisdiction and accordingly the relief of eviction and the ancillary reliefs also had been granted.

94. It is pertinent to note that when there is no landlord and tenant relationship between P.W.1 and the owners of the premises and in the light of the evidence available on record since it may have to be taken that P.W.2 did not depose before the Court all true facts and she had deposed in a particular fashion only with a view to help P.w.1, the relief of eviction granted with the other appropriate reliefs by the trial court also cannot be found fault. In fact, this Court had given anxious consideration to the findings recorded by the trial court at paras 22 to 88 and also in fact had thoroughly gone through the oral and documentary evidence available on record and on over all appreciation of the oral and documentary evidence available on record, the evidence of P.Ws.1 to 6, D.Ws.1 to 9, Exs.A-1 to A-14, Exs.B-1 to B-25, the findings recorded by the trial court cannot be found fault in any way, whatsoever, and accordingly the said findings are hereby confirmed.

95. The defect pointed out in the maintainability of the suit for eviction in the absence of one of the owners also cannot be taken as a sustainable objection, since the other owners always can maintain action for eviction for the benefit of such co-owner or co-sharer who may not be available for the present. Hence, the findings recorded by the trial court are hereby confirmed.

Point No.3:

96. In the result, both the appeals shall stand dismissed with costs.

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