P.S. Narayana, J
1. The unsuccessful plaintiff in O.S.No. 78 of 1984 on the file of the Subordinate Judge, Nuzvid is the appellant herein. The suit being O.S.No. 13 of 1982 was originally filed on the file of the Subordinate Judge, Gudivada and subsequently the same was transferred to the court of the Subordinate Judge, Nuzvid and re-numbered as O.S.No. 78 of 1984.
2. The avernments made in the plaint by the appellant-plaintiff are as follows:
The plaintiff and the second defendant were the sons of the first defendant late Ramachandraiah. Third defendant is the husband of sister of plaintiff and second defendant. Plaintiff and defendants 1 and 2 have effected a partition of the joint family properties under a registered partition deed dated 29-7-1975. Since then they have been enjoying their respective shares separately. The plaint schedule land with mango garden had to the share of the first defendant in the said partition. As first defendant became very old and was not satisfied with the income yielding from the suit land, he thought it fit to sell the schedule land. The plaintiff agreed to purchase the suit lands and the first defendant agreed to sell them for a total consideration of Rs. 25,000/-on 5-6-1976. He received Rs. 20,000/-from the plaintiff towards portion of the sale consideration and delivered possession of the suit lands to the plaintiff on 5-6-1976. It was agreed that the balance of sale consideration should be paid by the plaintiff to the first defendant with interest at the rate of 12% p.a. from the date of the agreement till the date of registration of the sale deed and it further agreed that first defendant should execute the sale deed at the expenses of the plaintiff either in favour of the plaintiff or in favour of his nominee at any time the plaintiff required the first defendant to do so, incorporating the above terms, the first defendant executed a possessory agreement of sale in favour of the plaintiff on 5-6-1976. Ever since the plaintiff had been in possession and enjoyment of the suit schedule properties by paying land revenue etc. The plaintiff had always been ready and willing to perform his part of the contract but the first defendant had been postponing the execution and registration of the sale deed on some pretext or the other. While the matter stood thus, defendants 2 and 3 some how wanted to grab the suit land and there by obtain wrongful gain for themselves while causing wrongful loss to the plaintiff. With that end in view of the defendants 2 and 3 instigated the first defendant to evade the execution and registration of the sale deed. Not stopping with that, the said defendants 2 and 3 with the help of their friends, the fourth defendant and the first defendant were attempting to trespass into the suit land in order to oust the plaintiff. All the defendants colluded in this connection and were making attempts to get fraudulent and collusive documents with false recitals executed by the first defendant in favour of the fourth defendant. Having to come to know about these attempts the plaintiff had got telegraphic notices issued through his Advocate on 2-3-1982. The defendants however did not stop their unlawful attempts and had been proclaiming in the village Meerjapuram that they would take forcible possession even at the risk of rioting. The plaintiff therefore, filed this suit for specific performance and permanent injunction. During the pendency of the suit, the first defendant died on 27-12-1984 and so the defendants 5 to 8 were also brought on record as remaining legal representatives.'
3. The first defendants, who was alive by the time of the presenting written statement, filed the written statement to the following effect:
'The relationship was not denied. He denied unequivocally the so-called agreement branding it totally false and calling a concocted document, if at all in existence. It is contended that the defendant had no necessity to sell the property and the plaintiff had no capacity to pay such a huge amount in 1976. The reasons given for the sale in favour of the plaintiff were false and fictitious. The sole attestor was no other than the co-brother of the plaintiff while the scribe was his friend. The paper is so fresh, that it did not look like an agreement of the year 1976. The plaintiff was never put in possession of the property. It is false to say that the plaintiff had been enjoying the usufruct of the land. On the other hand, it was the first defendant alone that had been enjoying the same. It is false to say that the plaintiff had been paying land revenue in respect of the suit land. It is the first defendant that had been paying the land revenue. If really the plaintiff was ready to perform his part of the contract, it is incomprehensible why he had kept quiet all those six years even without issuing a notice. First defendant was absolute owner of the property and he was entitled to deal with it as he willed. In fact he entered into an agreement with fourth defendant agreeing to sell the property shown in item No. 2 of the plaintiff schedule for a consideration of Rs. 55,000/- and the said fourth defendant paid an advance of Rs. 5,000/- also on 25-2-1982. The plaintiff was present at the time of this agreement. It was further agreed that the first defendant should execute a sale agreement after receiving further sum of Rs. 25,000/- from the fourth defendant who promised to pay the same on 4th or 5th of March, Meanwhile, the plaintiff hatched this plot and got the telegraphic notices issued through his advocate to grab the property and drive the old men to penury. The value of the mango garden was not less than Rs. 4,000/- per acre even in 1976. There was a bore wall in item No. 2 worth not less than Rs. 5,000/- by 1976, the recitals in the suit agreement are totally false. If any land revenue of commercial tax assessment had been paid by the plaintiff, it was only on his share and not on the entire extent. The suit is liable to be dismissed according to the first defendant.'
4. The other defendants had adopted the written statement filed by the first defendant. On the strength of the these pleadings, the trial court framed the following issues:
(1) Whether the sale agreement is true and valid?
(2) Whether the plaintiff is entitled to the specific performance of agreement of sale?
(3) To what relief?
5. Before the trial court, P.Ws. 1 to 5 and D.Ws. 1 to 7 were examined and Exs.A-1 to a-19 and Exs.B-1 to 3 were marked. On appreciation of both oral and documentary evidence, the trial court had dismissed the suit.
6. Aggrieved by the same, the plaintiff-appellant had preferred the present appeal.
7. Sri T. Veerabhadrayya, learned Counsel representing the appellant-plaintiff had contended that the parties are close relatives and the court below had totally erred in disbelieving the evidence of P.Ws.2 and 3. The learned Counsel had also taken me through the evidence of P.Ws. 1,2 and 3 in detail and had commented that the reasons recorded by the court below in refusing to grant relief of specific performance are totally unsustainable. The learned Counsel pointed out that the findings recorded by the court below relating to cist receipts also are unsustainable. The learned Counsel had also taken me through the recitals in Ex.A-1 and had explained how Ex.A-1 is a bona fide transaction and the learned Counsel also commented that the space in between the lines in Ex.A-1 cannot be a ground at all the disbelieve Ex.A-1. The learned counsel had also submitted that only one attestor had attested Ex.A-1 and the plaintiff had examined two witness to prove the execution and there is nothing unnatural in the evidence of these witnesses. The learned counsel further commented that the trial court had totally erred in discarding the evidence of P.W.2 on the ground that another document scribed by him was held to be invalid document. The learned Counsel submits that this approach of the trial Court is totally erroneous. The learned Counsel also commented that when the direct evidence of P.Ws.2 and 3 is available, there is no question of sending these documents even to the expert. The learned counsel had also drawn my attention to the relevant portions of the pleadings and also depositions of P.Ws.1, 2 and 3 in particular. The learned Counsel had also placed reliance on the decision in Bolisetti Venkatarthnamma (died) by Lrs. v. Nadakuduti Venkateswara Rao, 1991 (1)An.W.R. 1.
8. Sri K. Ranga Rao, learned Counsel representing the respondents had contended that on over all appreciation of the evidence and material available on record. Ex.A-1 cannot be believed to be a bona fide transaction. The learned Counsel had taken me through the evidence of P.W.2, P.W.3 and also the evidence of D.W.1, the second defendant in the suit, who was examined as D.W.2, who is the son of
the deceased first defendant, D.W.3, who is brother-in-law and related to both the parties, D.W.4 who is the mother of the contesting parties, i.e. wife of the deceased first defendant and other witnesses D.Ws. 5,6 and 7. The learned Counsel had taken me through the documentary evidence of Exs.B-1, B-2 and B-3 and had pointed out to the finding recorded by the trial court and the circumstances which made the trial Court to disbelieve Ex.A-1. The learned Counsel commented had that Ex.A-1 transaction is nothing but un-natural. The learned Counsel pointed out that the space in between the lines in the first and second pages itself will throw suspicion, even on a cursory looking of the document in question. Apart from it, Ex.A-1 was attested by only one witness and that witness too, is the relative of the appellant-plaintiff's wife. The learned Counsel had drawn my attention to this aspect by pointing out the evidence of D.W.3. The learned Counsel had further submitted that the mother of the contesting parties, who was examined as D.W.4 had categorically deposed in terms the stand taken by her deceased-husband, the first defendant. The evidence of D.Ws.1 and 2 also is clear and categorical to this effect. The learned Counsel further commented that the relief of specific performance is discretionary relief and the same was negatived on several grounds, but not on the sole ground of disbelieving the evidence of P.W.2 only that one of the documents scribed by him was disbelieved by the court.
9. Heard the learned Counsel for both sides.
10. The points which arise for consideration in this appeal are: (1) whether Ex.A-1 dated 5-6-2976 is true and valid? (2) whether the appellant is entitled for relief of specific performance and (3) to what relief?
11. Points 1 and 2: Points 1 and 2 can be discussed together for the purpose of convenience. The case of the plaintiff is that the first defendant, who was none other than the father of the contesting parties agreed to sell the plaint schedule property for a consideration of Rs. 25,000/- and in that behalf he paid Rs. 20,000/- and remaining Rs. 5,000/- alone has to be paid with interest, according to his convenience at the time of registration. The said document is dated 5-6-1976 and it was marked as Ex.A-1. It is pertinent to note that the first defendant who was alive by that time had filed written statement denying the very execution of Ex.A-1 and had taken a stand that it is a forged document. No doubt the first defendant died and legal representatives are brought on record, pending litigation. The main contention of the learned Counsel for the appellant-plaintiff is that the plaintiff had examined the attestor of Ex.A-1 and in spite of the direct evidence of P.Ws.2 and 3, the court below erred in negativing the relief of specific performance.
12. The suit is filed for relief of specific performance. The parties are closely related, Ex.A-2 was marked showing partition between the plaintiff, first and second defendants in the suit. Exs.A-3 to A-11 are cist receipts and Ex.A-12 is the telegram notice issued by the appellant-plaintiff to the first defendant and Ex.A-13 is the reply telegram issued by the first defendant to the plaintiff. Certain other documents Exs.A-14 to A-19 have also been marked. No doubt, in view of the finding of the lower Court in the light of the suggestions posed to P.W.1 and in the light of the stand taken, it can be said that Ex.A-1 is forged document and an attempt was made to explain that even otherwise it is not the case of other side that the signatures were obtained on the blank paper and document was filled up subsequently. No doubt evidence of P.W.2 is available on record, who had deposed in favour of P.W.1 and the evidence of P.W.1 need not be discussed at length. He had deposed what he pleaded in the plaint. In Bolisetti Venkatarthnamma (died) by Lrs. v. Nadakuduti Venkateswara Rao (1 supra), it was held that credibility of a witness can be decided only on the evidence recorded in the suit in which he figured as a witness, but not on the evidence given by him in another case. In Chandreshwar Prasad Narain Singh v. Bishweshwar Pratap Narain Singh, AIR 1927 Patna 61. it was held that the opinion of the court upon the character of a person is not admissible in evidence for the reason that there is no material for judging whether he was rightly disbelieved or wrongly disbelieved. As can be seen from the evidence of P.W.2, P.W.2 had admitted in his evidence that a document scribed by him in favour of Talari Antony was the subject matter in another suit and it was disbelieved. This solitary incident may not be a ground to totally disbelieve the evidence of P.W.2, but however, as can be seen from the findings recorded by the trial Court, it is clear that other circumstances had been taken into consideration. It is not in dispute that the first defendant-father was left with no other property. Though his wife was alive, who was examined as D.W.4, reasons are not forthcoming for executing Ex.A-1 in favour of his son by the deceased first defendant. The other aspect of the matter is that, P.Ws.1's financial capacity to pay the amount mentioned in Ex.A-1 can very well be doubted. The explanation of P.W.1 is that he got capacity to pay the amount, as he was solvent enough and this indicates strong suspension on the nature of the transaction. The evidence of D.Ws.1 and 2 and D.W.4, who are the family members and close relatives to both the parties, clearly goes to show that Ex.A-1 is not a genuine transaction. These aspects had been elaborately discussed at Paragraphs 12 and also 13. In fact the financial commitment of P.W.1 as on the date of Ex.A-1 had also been discussed in detail and apart from this aspect of the matter, why the evidence of P.Ws.2 and 3 cannot be believed, had been further explained at paragraph 14. It is true that even on the last date, the suit for relief of specific performance can be instituted, but here is a case, where the appellant-plaintiff had slept over the matter for sufficiently long time and approached the court and this aspect was also taken into consideration. It is also pertinent to note that not only the document Ex.A-1 was drafted on white paper, apart from it, it is also pertinent to note that there is only one attestor in the said document and that attestor is a relative of the wife of P.W.1 Though the suit is for specific performance, on over all appreciation of the evidence, it appears to be more or less a family dispute. One of the parties made a serious attempt to override the other members of the family so as to get the property which fell to the share of the father-first defendant. Hence the reasons recorded by the court below in disbelieving the evidence of P.Ws.2 and 3 are justifiable and I do not see any reason to arrive at a different conclusion, especially in the light of the evidence of D.Ws.1, 2 and 4. No doubt much stress had been laid on the evidence of D.W.4 stating that the mother obviously had taken the stand supporting defence version, but that itself cannot be a ground to disbelieve Ex.A-1. Several peculiar circumstances surrounding Ex.A-1 had compelled the trial Court to arrive at conclusion that it is not a bona fide transaction and had negatived the relief of specific performance. It is needless to say that the relief of specific performance is a discretionary relief, especially in the light of the several surrounding circumstances, the trial Court on appreciation of the evidence had negatived the relief on equitable grounds. The appellate court will not be justified in reversing such well-considered findings, unless and otherwise there are compelling reasons to do so. I do not find any such circumstances in the present appeal even on over all appreciation of the evidence of P.Ws.1 to 5 and D.Ws.1 to 7, to arrive at a different conclusion. No doubt, several arguments had been advanced at length pointing out the portions of the pleadings and also portions in the evidence of D.Ws.2 and 3. Strong reliance was placed on Paragraph 4 of the plaint to explain the reasons as to why the first defendant had executed Ex.A-1. It is no doubt true that P.W.1 had taken a specific stand that the first defendant was very old and unable to get satisfactory income and he intended to sell the land. But, however, if the circumstances are taken into consideration, the stand taken by the appellant plaintiff cannot be believed and on appreciation of evidence, the trial court had negatived the relief of specific performance. I do not seen any ground to interfere with the well-considered judgment of the trial court.
13. Point No. 3: No doubt several details relating to the oral evidence had been argued at length. But in the light of the detailed discussion of the trial court and the findings recorded on appreciation of evidence, the same need not be discussed at length. Viewed from any angle, there are no merits in the appeal and accordingly the appeal is dismissed. But, in view of the close relationship of the parties, this court makes no order as to costs.