The evidence of the 1st defendant, ....lends support to the case of the plaintiff about the oral agreement of sale on 5-1-1973. His admission that Exs.A.14 to A.18 were written by him to the plaintiff is a clear admission about the agreement of sale and putting the plaintiff into possession in pursuance of the agreement of sale. This admission by the 1st defendant coupled with the evidence of P.W.3 and P.W.4 who are mediators, assumes significance in establishing the case of the plaintiff. A clear admission is a substantive evidence even though the party is not confronted with the statement....... Where the party to the suit admits a particular fact in the witness box it need not be put to him again and it is admissible in evidence under Sections 17 and 18 of the Indian Evidence Act.
<INDIAN EVIDENCE ACT, 1872 - Facts admitted need not be put to the witness again.
TRANSFER OF PROPERTY ACT, 1882 - S.54 - Oral agreement of sale is legal & as good as a written agreement.
>HELD:
The evidence of the 1st defendant, ....lends support to the case of the plaintiff about the oral agreement of sale on 5-1-1973. His admission that Exs.A.14 to A.18 were written by him to the plaintiff is a clear admission about the agreement of sale and putting the plaintiff into possession in pursuance of the agreement of sale. This admission by the 1st defendant coupled with the evidence of P.W.3 and P.W.4 who are mediators, assumes significance in establishing the case of the plaintiff. A clear admission is a substantive evidence even though the party is not confronted with the statement....... Where the party to the suit admits a particular fact in the witness box it need not be put to him again and it is admissible in evidence under Sections 17 and 18 of the Indian Evidence Act.
It is well settled that an oral agreement is legal and valid inasmuch as written agreement of sale.....Under section 54 of the Transfer of Property Act it is not necessary that an agreement of sale should be in writing and that there is no prohibition against an oral contract of sale. In every case where the plaintiff comes up with the plea of contract of oral sale the burden is upon the plaintiff to establish by cogent evidence that such an oral agreement took place between him and the defendant or defendants.
For the Appellant :Sri M.Chandrasekhara Rao
For Respondents 1 to 5:Sri T.Veerabhadraiah
For Respondents 5 to 8:Sri P.M.Gopala Rao
:JUDGMENT:-
THE HON'BLE SRI JUSTICE I.VENKATANARAYANA
APPEAL SUIT No.1272 of 1990
Unsuccessful plaintiff is the appellant. Suit, O.S. No.95 of 1985 was filed by the sole plaintiff on the file of the Subordinate Judge, Gudivada for specific performance of agreement of sale dated 5-1-1973 directing defendants 1 to 5 to execute registered sale deed and for possession of the suit schedule property. For the sake of convenience, parties to this appeal would be referred to in accordance with their ranking in the suit.
The averments in the plaint, in brief, are set out as hereunder:- Late Bobba Krishna Murthy was the undivided father of the 1st defendant. The 2nd defendant is the wife of Krishna Murthy and defendants 3 to 5 are their daughters. Krishna Murthy is the maternal uncle of the plaintiff. Krishna Murthy and his undivided father Ramachandrayya borrowed a sum of Rs.4,390-00 from the plaintiff's wife and executed a pronote dated 16-8-1967 in her favour agreeing to repay the same with interest at 12% P.A. They made a part payment of Rs.25-00 on 12-8-1970 and endorsed the same on the back of the pronote. Ramachandrayya died in or about the year 1971. Subsequently Krishna Murthy also died in or about the year 1972. The plaint schedule property was the absolute property of Krishna Murthy. He purchased the same from one Vegunta Venkata Subba Rao under a registered sale deed dated 26-6-1978 for Rs.15,000-00 but Krishna Murthy executed a pronote for the said sale consideration of Rs.15,000- 00 in favour of the vendor V.V.Subba Rao on the same date. After Krishna Murthy purchased the plaint schedule property, he installed a motor pump set in the well and obtained electricity connection. He constructed a thatched shed for the motor pump set. For non-payment of the electricity charges the service connection was disconnected. Krishna Murthy took away the motor pump set etc., from the land. He was indebted to the Land Mortgage Bank, Gannavaram and also to Kollipara Venkata Seetharamayya. The Bank sold Ac.7-00 of land of Krishna Murthy to satisfy its debt. Seetharamayya attached the schedule property subject to the first charge of V.V.Subba Rao and brought the same to sale in E.P. No.77 of 1971 in O.S. No.212 of 1979. When the plaintiff and his wife pressed Krishna Murthy for payment of the pronote debt, he as well as defendants 1 and 2 expressed that there is no possibility of their discharging the debt under the pronote and requested the plaintiff to purchase the schedule mentioned property in full satisfaction of the pronote debt as well as the first charge due to V.V.Subba Rao. They also requested the plaintiff to make a further payment of Rs.5,000-00. In the first week of January 1973 the plaintiff approached defendants 1 to 5 through mediators viz., Kommana Surya Prakasa Rao, Moturi Sivaramabrahmam, Surapaneni Kutumbaya, Katragadda Kutumba Rao and V.V. Krishna Rao. The 5th defendant was a minor by then. Defendants 1 to 4 represented to the plaintiff that they are not in a position to discharge the debt covered by the pronote and that as already suggested by late Krishna Murthy, they requested the plaintiff to purchase the plaint schedule land for Rs.34,000-00 and that the plaintiff could discharge the debt of his wife, undertake responsibility to discharge the debt due to V.V.Subba Rao and pay Rs.5,000-00 in cash to them out of the sale consideration and obtain reconnection of the electricity to the bore-well. The plaintiff accepted the said proposal of defendants 1 to 5. The reconnection charges were estimated at Rs.2,000-00. It was agreed that defendants 1 to 5 should execute a registered sale deed in favour of the plaintiff for the suit schedule land as and when the plaintiff required them to do so. Defendants 1 to 5 represented that they would negotiate with Seetharamayya for settlement of the debt due to him. The terms were agreed upon orally and a concluded contract came into existence between the plaintiff and defendants 1 to 5 on 5-1-1973. On 15-1-1973 the plaintiff completely discharged the debt due to his wife under the pronote by paying her Rs.7,701-00 and obtained the discharged pronote as voucher. He also paid Rs.5,000-00 in cash to defendants 1 to 4 and the 5th defendant represented by her mother as her guardian, in the presence of K. Surya Prakasa Rao and M.Sivaramabrahmam at Vissannapet. On that day, the 1st defendant delivered possession of the suit schedule land to the plaintiff and since then the plaintiff has been in possession of the plaint schedule property. Defendants 1 to 5 were not in a position to execute the sale deed, as agreed, for the suit schedule property till about the year 1981 as the attachment was subsisting. V.V.Subba Rao filed O.S. No.294 of 1980 in the Subordinate Judge's Court at Vijayawada and obtained a preliminary decree on 31-7-1980 and also filed a petition for final decree. On 1-1-1984 the decree of Seetharamayya barred by time. When Subba Rao was pressing for discharge of his debt, the plaintiff requested his brother-in-law Katneni Ramakrishna to obtain transfer of the said decree from V.V.Subba Rao for Rs.19,000-00. The decree was accordingly got transferred. The plaintiff obtained reconnection of electricity on 29-12-1975 after paying Rs.2124-94. The plaintiff has always been ready and willing to perform his part of the contract. Defendants 1 to 5 were not discharging their part of the contract. The plaintiff spent money for installing motor pipes, switch board, starter etc. for working out of the bore and the electric motor. In 1976 the plaintiff reclaimed Ac.5-00 of the suit property which was by then lying waste and converted it into cultivable land. He also deepened the well by 10 feet in1983. As the groundnut crop was not getting satisfactory income, the plaintiff left the land as grazing land for cattle. The plaintiff's rights became perfected by adverse possession. Because of raise in prices, defendants 1 to 5 postponed to execute the sale deed from January 1984. On the other hand they executed an agreement of sale for the suit schedule land in favour of defendants 6 to 8. Defendants 6 to 8 knew about the plaintiff's sale agreement and plaintiff's possession of the suit schedule land as purchaser from defendants 1 to 5. The said agreement does not bind the plaintiff. On 30-4- 1985 the 1st defendant informed the plaintiff that he and defendants 2 to 5 are prepared to execute the sale deed, as agreed upon, and asked the plaintiff to purchase stamp papers. Accordingly the plaintiff purchased the stamp papers at Gannavaram. The 1st defendant signed on the voucher book of the document writer and went to bring defendants 2 to 5 but he did not return. Since defendants 1 to 5 failed to execute the registered sale deed, the plaintiff was constrained to file the present suit.
The 1st defendant resisted the suit and denied the averments in the plaint in toto. Defendants 2 to 5 adopted the written statement filed by the 1st defendant. The 1st defendant denied the execution of the pronote dated 16-8- 1967 in favour of the plaintiff's wife. He also denied that his late father borrowed Rs.4,390-00 from the plaintiff's wife. The 1st defendant also denied the part payment of Rs.25-00 on 12-8-1970 said to have been endorsed by the borrower. He also denied the fact that he or his parents ever expressed their failure to discharge plaintiff's wife's debt and requested the plaintiff to purchase the suit property for Rs.34,000-00 redeeming the first charge debt due to V.V.Subba Rao while satisfying his wife's debt out of the balance of sale consideration. It is the contention of defendants 1 to 5 that they never offered the plaint schedule land for sale to the plaintiff and the alleged adverse possession of the plaintiff is false and untenable. In short, these defendants contended that the plaintiff has no legal or contractual right to seek specific performance of the alleged oral agreement against defendants 1 to
5. Defendants 6 to 8, who are alienees of the suit schedule property, supported the case of defendants 1 to 5 and contended that they are bonafide purchasers for value under an agreement of sale dated 2-8-1985. Defendants 1 to 8 filed additional written statement contending that the alleged oral contract dated 5-1-1973 is void under A.P. Land (Prohibition of Alienation) Act 1972 and under Section 17 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1973. The plaintiff filed rejoinder contending that the provisions of A.P. Act 13 of 1972 and Act 1 of 1973 are not applicable and that the suit agreement is not void.
Based on the above pleadings the trial court addressed itself to the following issues and additional issues:-
ISSUES:-
1. Whether the pronote dated 16-8-1967 in favour of the plaintiff's wife is true?
2. Whether the endorsement of payment for Rs.25-00 dated 12-8-1970 is true?
3. Whether the oral agreement of sale dated 5-1-1973 between the plaintiff and defendants 1 to 5 in respect of plaint schedule property is true?
4. Whether the plaintiff perfected his title to the suit property by adverse possession?
5. Whether the agreement of sale of the suit property in favour of defendants 6 to 9 dated 2-8-1985 is true and binding on the plaintiff and, if so, defendants 6 to 8 are bonafide purchasers of the suit land?
6. Whether the plaintiff is entitled to the specific performance of the agreement of sale dated 5-1-1973 as prayed for?
7. Whether the plaintiff is entitled to the permanent injunction?
8. To what relief?
ADDITIONAL ISSUES:-
1. Whether the agreement is void under the provisions of A.P. Agricultural Lands (Prohibition and Alienation) Act, 1972?
2. Whether the agreement is void under the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1973?
Based on oral and documentary evidence adduced by both the parties, the trial court found pronote dated 16-8-1967 (Ex.A.2) as true and disbelieved the oral agreement of sale dated 5-1-1973 set up by the plaintiff and held that the plaintiff is not entitled to specific performance of the agreement of sale dated 5-1-1973 and ultimately dismissed the suit. Hence the appeal. Sri M.Chandrasekhara Rao, the learned counsel for the appellant has assailed the judgment and decree of the trial court and contended that the oral agreement of sale dated 5-1-1973 has been proved beyond doubt by the plaintiff and the trial court, having given a finding that Ex.A.2 dated 16-8-1967 is true, ought to have decreed the suit as prayed for. He placed strong reliance on the various oral and documentary admissions made by the 1st defendant which form substantial evidence and the trial court ought to have relied on them as contemplated under Sections 17 and 18 of the Indian Evidence Act. He placed strong reliance on Exs.A.14 to A.18 which were admitted by the 1st defendant as D.W.2 and contended that they establish beyond doubt the agreement of sale dated 5-1-1973. The learned counsel for the appellant also contended that the purchase by defendants 6 to 8 is not bonafide since they are aware of the agreement of sale. He contended that under Section 3 of the Transfer of Property Act possession of the suit schedule property by the plaintiff is itself notice. It is the case of the plaintiff as unfolded from the pleadings and evidence that late Bobba Krishna Murthy and his father have borrowed Rs.4,390-00 from his (plaintiff's) wife Venkata Varalakshmi and executed EX.A.3 pronote dated 16-8-1967 and that they made part payment of Rs.25-00 and executed Ex.A.41 endorsement on 12-8-1970 and since they were unable to discharge the debt Krishna Murthy expressed to the plaintiff to adjust the pronote debt out of the sale consideration. The plaintiff was considering the proposal and after the death of Bobba Krishna Murthy, defendants 1 to 5 asked the plaintiff to purchase the suit land and on 5-1-1973 there was a mediation at Vijayawada and the plaintiff agreed to purchase the suit schedule land for Rs.34,000-00 and that out of the sale consideration the plaintiff paid Rs.7,701-00 to his wife in discharge of the pronote debt as per Ex.A.43 payment endorsement and out of the balance of the sale consideration he has discharged the decree of V.V.Subba Rao, who filed suit and obtained decree on the foot of Ex.A.5 pronote and paid Rs.2000-00 and odd towards electricity charges due by Krishna Murthy thereby paid the total sale consideration.
Sri T.Veerabhadrayya, the learned counsel appearing for respondents 1 to 5 contended that the plaintiff failed to establish that there was a concluded contract with specific terms and conditions. It is his contention that the burden is heavily upon the plaintiff to establish that there was an oral agreement dated 5-1-1973 and that the plaintiff failed to discharge his burden. He further submitted that presuming that there is an oral agreement the plaintiff was never ready and willing to perform his part of the contract. Specific performance of a contract is a discretionary remedy and the plaintiff should come to the court with clean hands. He submitted that mere agreement itself is not sufficient to grant a decree. In short, he supported the findings, judgment and decree of the trial court.
Sri P.M.Gopala Rao, the learned counsel appearing for respondents 6 to 8 supported the case of defendants 1 to 5 and contended that there is no concluded contract and the case of the plaintiff suffers from laches and hence it is liable to be rejected. It is also his contention that the relief is barred by limitation.
Taking into consideration the various submissions made on behalf of the appellant and the respondents, I will address myself to the crucial issue "Whether the oral agreement of sale dated 5-1-1973 between the plaintiff and defendants 1 to 5 in respect of the plaint schedule property is true?" The burden is on the plaintiff to prove the oral agreement of sale dated 5-1-1973 and it has to be examined how far the plaintiff has discharged his burden through the oral and documentary evidence. The suit land is an extent of Ac.10- 82 cents of dry land situate in R.S.Nos.232 and 234 of Balliparra village in the erstwhile Gannavaram Taluk, Krishna District. The said land originally belonged to one Vegunta Venkata Subba Rao of Eluru. It was purchased by Bobba Krishna Murthy for Rs.15,000-00 under the registered sale deed dated 26-6-1968. Ex.A.4 is the certified copy of the said sale deed. Bobba Krishna Murthy executed a pronote on the same date in favour of V.V.Subba Rao for the sale consideration of Rs.15,000-00. Ecx.A.5 is the certified copy of the said pronote. Krishna Murthy died in the year 1971. The 1st defendant is the son, the 2nd defendant is the widow and defendants 3 to 5 are the daughters of the said Krishna Murthy. Ramachandrayya is the father of Krishna Murthy who died in the year 1972. Krishna Murthy is no other than the maternal uncle of the plaintiff.
The case of the plaintiff is that Krishna Murthy and his father borrowed Rs.4390-00 from his wife Venkata Varalakshmi and executed Ex.A.2 pronote dated 16-8-1967 and that they made part payment of Rs.25-00 and executed Ex.A.41 payment endorsement on 12-8-1970. Subsequently the plaintiff was pressing for repayment of the said debt. So Bobba Krishna Murthy proposed to sell the suit land to the plaintiff and to adjust the pronote debt out of the sale consideration. The plaintiff was considering the said proposal and meanwhile Krishna Murthy died and defendants 1 to 5 expressed their inability to repay the suit debt and that on 5-1-1973 there was a mediation and in the presence of the mediators the plaintiff agreed to purchase the suit land for Rs.34,000-00 and that out of the sale consideration the plaintiff paid Rs.5,000-00 to defendants 1 to 5 on 15-1-1973 at Vissannapet and the plaintiff paid a further sum of Rs.7,701-00 to his wife in discharge of the pronote debt as per EX.A.43 payment endorsement and that out of the balance of the sale consideration he has discharged the decree debt of V.V.Subba Rao under EX.A.5 pronote and also paid electricity arrears due by Krishna Murthy. All these payments represent total sale consideration. It is also the plaintiff's further contention that on 15-1- 1973 the plaintiff was put into possession of the suit schedule property. The plaintiff examined himself as P.W.2 and it is in his evidence that the total sale consideration was fixed at Rs.34,000-00 and that it consisted of Rs.15,000- 00 with interest payable to V.V.Subba Rao, which has got first charge over the suit property, discharge of his wife's pronote debt to the extent of Rs.7,701- 00, electricity arrears and reconnection charges of Rs.2,124-90 and payment of cash of Rs.5,000-00 to defendants 1 to 5 and the agreement took place in the presence of mediators Kommana Surya Prakasa Rao (P.W.3), M.Sivaramabrahmam (P.W.4), Surapaneni Kutumbayya, Katragadda Kutumba Rao and V.V.Krishna Rao. He further deposed that he paid Rs.5,000-00 to defendants 1 to 5 on 15-1-1973 in the presence of P.Ws.3 and 4 and that he cancelled the pronote debt of his wife on the same day and possession of the land was delivered to him on the same day. P.W.3 who is known to both the parties and about the transaction between the parties, speaks about the finalization of the sale agreement. According to him, ten days subsequent to the finalization of the sale agreement, P.W.1 took his wife, P.W.4 and P.W.5 to Vissannapeta and Balliparra Karanam (P.W.8) was also present and P.W.1 paid Rs.5,000-00 to the 2nd defendant in their presence. His deposition discloses that he cancelled the pronote debt of his wife on the same day and he was put into possession of the suit property on the same day. In short, it is his contention that he performed his part of the contract and defendants 1 to 5 were postponing the execution of the decree. It is also in evidence that on 28-4- 1985 the 1st defendant came to the plaintiff and asked him to purchase the stamp papers for the sale deed and on 30-4-1985 the plaintiff and the 1st defendant along with P.W.9 went to Gannavaram and purchased stamp papers worth Rs.4,400-00 as the stamp duty was going to be enhanced from the next day onwards. It is in his evidence that after the purchase of stamp papers, the 1st defendant went to Vijayawada to bring defendants 3 to 5 and before the 1st defendant left for Vijayawada, P.W.8 obtained the signatures of the 1st defendant in the voucher book and register which were maintained by him. Subsequently the 1st defendant did not return from Vijayawada with his sisters. Hence the plaintiff filed the suit. The case of the plaintiff was supported by P.Ws.3 to 9 establishing that there was a mediation and an oral agreement took place on 5-1- 1973 at Vijayawada in the presence of the mediators. P.W.3 and P.W.4 are the mediators who were present at Vijayawada in whose presence the agreement of sale took place. Both of them speak about the mediation in the house of V.V.Krishna Rao at Vijayawada just before Sankranthi in January 1973. It is in their evidence that after lot of discussions defendants 1 to 5 were not in a position to discharge the debt owed by Bobba Krishna Murthy to P.W.1's wife. It was informed that the previous proposal of Krishna Murthy was that P.W.2 should take the suit land in consideration of discharging his wife's debt, paying of the electricity dues, paying of cash of Rs.5,000-00 and clearing the first charge debt of V.V.Subba Rao. It is also in evidence that defendants 1 to 5 agreed to take steps for raising the attachment of the suit land made at the instance of V.V.Subba Rao. Thus, the evidence of P.W.3 and P.W.4 establishes that there was an oral agreement that took place on 5-1-1973. The evidence of P.W.9 is cogent and establishes the various payments by the plaintiff resulting in the suit transaction. The veracity of his evidence has not been challenged in the cross-examination.
As against this, it is necessary to examine the evidence adduced on behalf of the defendants. The 2nd defendant has examined herself as D.W.1 and totally denied the case of the plaintiff. In cross-examination she admits that V.V.Subba Rao filed O.S.194 of 1980 against them and obtained a decree in Sub- Court, Vijayawada and states that the debt was discharged out of the sale proceeds of the suit land to defendants 6 to 8. She also admits that her late husband was indebted to Ampapuram Cooperative Credit Society and also owed money to Land Mortgage Bank. She further admits that her husband was indebted to Sitaramaiah. The 1st defendant has deposed as D.W.2. He denied the suit transaction but admits K.V.Sitaramaiah filing O.S. No.212 of 1969 and that he is also a party to that suit. He admits that Exs.A.14 to A.18 were written in his own hand. These are letters addressed by the 1st defendant to the plaintiff. These letters would clearly establish that defendants 1 to 5 have put the plaintiff into possession of the suit schedule property and the 1st defendant has been requesting further monetary help from the plaintiff. He accepts having received the amounts from the plaintiff and at the same time accused him of having paid the same in instalments. In EX.A.18 he admits the settlement and mediation made by his father's elder brother and others. Ex.A.19 is a post card dated 14-8-1978 addressed to the plaintiff by the Inspector of Central Excise, Rural Sector, Vijayawada. In this letter the Excise Inspector has demanded the plaintiff to sell the tobacco to the Board after obtaining required licence. This clearly establishes that the plaintiff has been put into possession of the suit schedule property in pursuance of the agreement of sale dated 5-1-1973. Exs.A.20 to A.33 are electricity receipts for the charges paid by the plaintiff and EX.A.35 is the declaration made by the plaintiff under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. D.W.3 to D.W.6 are defendants 6 to 8. Their evidence only speaks of their purchasing the property and does not throw any light on the mediation resulting in oral agreement of sale that took place at Vijayawada.
On an overall appreciation of the entire evidence on record, there is consistency in the evidence of P.Ws.1 to 3 and P.Ws.8 and 9 which clearly establishes that parties are very closely related and that an oral agreement of sale took place on 5-1-1973 at Vijayawada in the presence of mediators who, in turn, are known to both the parties. The evidence of the 1st defendant, who deposed as D.W.2, lends support to the case of the plaintiff about the oral agreement of sale on 5-1-1973. His admission that Exs.A.14 to A.18 were written by him to the plaintiff is a clear admission about the agreement of sale and putting the plaintiff into possession in pursuance of the agreement of sale. This admission by the 1st defendant coupled with the evidence of P.W.3 and P.W.4 who are mediators, assumes significance in establishing the case of the plaintiff. A clear admission is a substantive evidence even though the party is not confronted with the statement. This has been clearly laid down by the Apex Court in a judgment reported in BHARAT SINGH Vs. BHAGIRATHI1. The aforementioned legal proposition has been reiterated in the latest judgment of the Apex Court reported in BISWANATH PRASAD Vs. DWARAKA PRASAD2. The aforementioned judgments make it clear that where the party to the suit admits a particular fact in the witness box it need not be put to him again and it is admissible in evidence under Sections 17 and 18 of the Indian Evidence Act. The trial court considered Exs.A.14 to A.18 and admits that there is some agreement and that even if such an agreement is proved, the plaintiff has not performed his part of the agreement. But the case of the defendants is one of total denial which indicates that the defendants have not placed true and correct facts before the court. The trial court on a detailed discussion has held that Ex.A.2 pronote is genuine and negatived the plea of forgery and at the same time has held that Ex.A.41 which is payment endorsement on Ex.A.2 is not signed by Bobba Krishna Murthy. But it is in evidence of P.W.21 that the father of the 1st defendant was a worldly-wise man and that he can write the document in his own hand and that on the date of payment of endorsement on Ex.A.2 he was suffering from brain tumor and was not able to write clearly. This explains the variation in the signature. The reasoning of the trial court that though Krishna Murthy was attacked with brain fever, the characteristic features in the letters of his signature cannot go away is unsustainable. By efflux of time there is every possibility of variation in signatures, more so to the person who is affected with brain fever. Hence I hold that the endorsement Ex.A.41 on Ex.A.2 is true and genuine.
The learned counsel appearing for defendants 6 to 8 contended that the suit is barred by limitation. It is his contention that the suit agreement is dated 5- 1-1973 and the suit was filed on 19-11-1985. On this aspect the learned counsel for the appellant submits that the plaintiff was put into possession of the suit schedule property in pursuance of the agreement of sale and that O.S. No.212 of 1969 was filed by K.V.Sitaramayya and he obtained a decree and attached the suit schedule property in E.P. No.77 of 1971 and the attachment was pending till 1983 and hence the question of limitation does not arise on the facts of the case. That apart, there is neither a pleading nor an issue before the trial court on this question. Hence there is no need to advert to this aspect and give a finding on the issue of limitation.
It is well settled that an oral agreement is legal and valid inasmuch as written agreement of sale. In Y.V.NARASIMHA SARMA Vs. S. APPALARAJU3 this court has held that under Section 54 of the Transfer of Property Act it is not necessary that an agreement of sale should be in writing and that there is no prohibition against an oral contract of sale. In every case where the plaintiff comes up with the plea of contract of oral sale the burden is upon the plaintiff to establish by cogent evidence that such an oral agreement took place between him and the defendant or defendants. It has to be examined how far the plaintiff has discharged this burden. It is in the evidence of the plaintiff that the total sale consideration was fixed at Rs.34,000-00 in pursuance of the mediation and oral agreement at Vijayawada on 5-1-1973. The sale consideration consisted of Rs.15,000-00 with interest payable to V.V.Suba Rao which has got first charge over the suit property; discharge of his wife's pronote debt to the extent of Rs.7,701-00; electricity arrears and reconnection charges amounting to Rs.2,124- 90 paise and payment of cash of Rs.5,000-00 to defendants 1 to 5. The aforementioned evidence was supported by the evidence of mediators and documents Exs.A.14 to A.18. From the facts and circumstances and the close relationship between the parties, it is not unnatural that the agreement of sale was not reduced to writing. The evidence of P.W.8 shows that on 30-4-1985 P.W.1, the 1st defendant and his son came to him for writing the document and that they have found out about the value of the land from the Sub-Registrar's office and after verification they purchased stamp papers worth Rs.4,400-00 and the stamp papers were purchased in the name of P.W.1. Exs.X.1, X.2, X.3 notice and receipts issued by the Sub-Registrar establish the purchase of stamp papers. All these facts and circumstances establish the case of the plaintiff. The evidence of defendants does not in any way disprove the case of the plaintiff except denying the case of the plaintiff in toto. The cumulative effect of the evidence and circumstances emanating from the record, as discussed by me, supra, goes in favour of the conclusion that there was an oral agreement of sale on 5- 1-1973 and in pursuance of the agreement of sale the plaintiff was put into possession of the suit schedule property and, therefore, the plaintiff is entitled to a decree for specific performance based on the oral agreement of sale dated 5-1-1973. Since the plaintiff has proved his possession from the date of agreement of sale he will be entitled to the relief of permanent injunction.
The plaintiff has set up the plea that he has perfected his title to the suit property by adverse possession. It is his case that he has been in continuous possession of the suit schedule property to the knowledge of the true owners. In a case of an agreement of sale when the party who obtained possession in pursuance of contract of sale acknowledges the title of the true owner, such acknowledgement excludes the theory of adverse possession. Adverse possession implies that it commenced in wrong and is maintained against right. The Apex Court had an occasion to deal with a case where purchaser was put into possession in pursuance of a contract and the purchaser claiming adverse possession. The Supreme Court in a case reported in ACHAL REDDI Vs. RAMAKRISHNA REDDIAR4 has held as follows:
"In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse."
The aforementioned decision was followed by the Apex Court in a judgment reported in ROOP SINGH Vs. RAM SINGH5. The Apex Court reiterated its earlier stand and held that permissive possession for long does not convert into adverse possession. Following the judgments of the Apex Court I find that the plaintiff is not entitled to claim the suit schedule property in adverse to the true owner but they are entitled to the decree for specific performance as prayed for. For the aforementioned discussion, I set aside the judgment and decree of the trial court and hold that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 5-1-1973 by directing defendants 1 to 5 to execute and register the sale deed in respect of the plaint schedule property and in view of my finding that the plaintiff is in possession of the suit schedule property from 1973 there shall be a decree for permanent injunction restraining the defendants and their men from interfering with the plaintiff's possession and enjoyment. Suit, O.S. No.95 of 1985 is decreed to the extent as indicated above and the appeal is accordingly allowed. As the parties are closely related to each other, I award no costs both in the suit as well as in the appeal.
?1 A I R 1966 S C 405
2 A I R 1974 S C 117
3 1989 (2) A L T 653
4. A I R 1990 S C 553
5. (2000) 3 S C C 708
6. A I R 1966 S C 405
7. A I R 1974 S C 117
8 . 1989 (2) A L T 653
9 . A I R 1990 S C 553
10 (2000) 3 S C C 709
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Moturi Seetaramabrahmam vs Bobba Rama Mohana Rao & Others on 17 July, 2000
<INDIAN EVIDENCE ACT, 1872 - Facts admitted need not be put to the witness again.
TRANSFER OF PROPERTY ACT, 1882 - S.54 - Oral agreement of sale is legal & as good as a written agreement.
>HELD:
The evidence of the 1st defendant, ....lends support to the case of the plaintiff about the oral agreement of sale on 5-1-1973. His admission that Exs.A.14 to A.18 were written by him to the plaintiff is a clear admission about the agreement of sale and putting the plaintiff into possession in pursuance of the agreement of sale. This admission by the 1st defendant coupled with the evidence of P.W.3 and P.W.4 who are mediators, assumes significance in establishing the case of the plaintiff. A clear admission is a substantive evidence even though the party is not confronted with the statement....... Where the party to the suit admits a particular fact in the witness box it need not be put to him again and it is admissible in evidence under Sections 17 and 18 of the Indian Evidence Act.
It is well settled that an oral agreement is legal and valid inasmuch as written agreement of sale.....Under section 54 of the Transfer of Property Act it is not necessary that an agreement of sale should be in writing and that there is no prohibition against an oral contract of sale. In every case where the plaintiff comes up with the plea of contract of oral sale the burden is upon the plaintiff to establish by cogent evidence that such an oral agreement took place between him and the defendant or defendants.
For the Appellant :Sri M.Chandrasekhara Rao
For Respondents 1 to 5:Sri T.Veerabhadraiah
For Respondents 5 to 8:Sri P.M.Gopala Rao
:JUDGMENT:-
THE HON'BLE SRI JUSTICE I.VENKATANARAYANA
APPEAL SUIT No.1272 of 1990
Unsuccessful plaintiff is the appellant. Suit, O.S. No.95 of 1985 was filed by the sole plaintiff on the file of the Subordinate Judge, Gudivada for specific performance of agreement of sale dated 5-1-1973 directing defendants 1 to 5 to execute registered sale deed and for possession of the suit schedule property. For the sake of convenience, parties to this appeal would be referred to in accordance with their ranking in the suit.
The averments in the plaint, in brief, are set out as hereunder:- Late Bobba Krishna Murthy was the undivided father of the 1st defendant. The 2nd defendant is the wife of Krishna Murthy and defendants 3 to 5 are their daughters. Krishna Murthy is the maternal uncle of the plaintiff. Krishna Murthy and his undivided father Ramachandrayya borrowed a sum of Rs.4,390-00 from the plaintiff's wife and executed a pronote dated 16-8-1967 in her favour agreeing to repay the same with interest at 12% P.A. They made a part payment of Rs.25-00 on 12-8-1970 and endorsed the same on the back of the pronote. Ramachandrayya died in or about the year 1971. Subsequently Krishna Murthy also died in or about the year 1972. The plaint schedule property was the absolute property of Krishna Murthy. He purchased the same from one Vegunta Venkata Subba Rao under a registered sale deed dated 26-6-1978 for Rs.15,000-00 but Krishna Murthy executed a pronote for the said sale consideration of Rs.15,000- 00 in favour of the vendor V.V.Subba Rao on the same date. After Krishna Murthy purchased the plaint schedule property, he installed a motor pump set in the well and obtained electricity connection. He constructed a thatched shed for the motor pump set. For non-payment of the electricity charges the service connection was disconnected. Krishna Murthy took away the motor pump set etc., from the land. He was indebted to the Land Mortgage Bank, Gannavaram and also to Kollipara Venkata Seetharamayya. The Bank sold Ac.7-00 of land of Krishna Murthy to satisfy its debt. Seetharamayya attached the schedule property subject to the first charge of V.V.Subba Rao and brought the same to sale in E.P. No.77 of 1971 in O.S. No.212 of 1979. When the plaintiff and his wife pressed Krishna Murthy for payment of the pronote debt, he as well as defendants 1 and 2 expressed that there is no possibility of their discharging the debt under the pronote and requested the plaintiff to purchase the schedule mentioned property in full satisfaction of the pronote debt as well as the first charge due to V.V.Subba Rao. They also requested the plaintiff to make a further payment of Rs.5,000-00. In the first week of January 1973 the plaintiff approached defendants 1 to 5 through mediators viz., Kommana Surya Prakasa Rao, Moturi Sivaramabrahmam, Surapaneni Kutumbaya, Katragadda Kutumba Rao and V.V. Krishna Rao. The 5th defendant was a minor by then. Defendants 1 to 4 represented to the plaintiff that they are not in a position to discharge the debt covered by the pronote and that as already suggested by late Krishna Murthy, they requested the plaintiff to purchase the plaint schedule land for Rs.34,000-00 and that the plaintiff could discharge the debt of his wife, undertake responsibility to discharge the debt due to V.V.Subba Rao and pay Rs.5,000-00 in cash to them out of the sale consideration and obtain reconnection of the electricity to the bore-well. The plaintiff accepted the said proposal of defendants 1 to 5. The reconnection charges were estimated at Rs.2,000-00. It was agreed that defendants 1 to 5 should execute a registered sale deed in favour of the plaintiff for the suit schedule land as and when the plaintiff required them to do so. Defendants 1 to 5 represented that they would negotiate with Seetharamayya for settlement of the debt due to him. The terms were agreed upon orally and a concluded contract came into existence between the plaintiff and defendants 1 to 5 on 5-1-1973. On 15-1-1973 the plaintiff completely discharged the debt due to his wife under the pronote by paying her Rs.7,701-00 and obtained the discharged pronote as voucher. He also paid Rs.5,000-00 in cash to defendants 1 to 4 and the 5th defendant represented by her mother as her guardian, in the presence of K. Surya Prakasa Rao and M.Sivaramabrahmam at Vissannapet. On that day, the 1st defendant delivered possession of the suit schedule land to the plaintiff and since then the plaintiff has been in possession of the plaint schedule property. Defendants 1 to 5 were not in a position to execute the sale deed, as agreed, for the suit schedule property till about the year 1981 as the attachment was subsisting. V.V.Subba Rao filed O.S. No.294 of 1980 in the Subordinate Judge's Court at Vijayawada and obtained a preliminary decree on 31-7-1980 and also filed a petition for final decree. On 1-1-1984 the decree of Seetharamayya barred by time. When Subba Rao was pressing for discharge of his debt, the plaintiff requested his brother-in-law Katneni Ramakrishna to obtain transfer of the said decree from V.V.Subba Rao for Rs.19,000-00. The decree was accordingly got transferred. The plaintiff obtained reconnection of electricity on 29-12-1975 after paying Rs.2124-94. The plaintiff has always been ready and willing to perform his part of the contract. Defendants 1 to 5 were not discharging their part of the contract. The plaintiff spent money for installing motor pipes, switch board, starter etc. for working out of the bore and the electric motor. In 1976 the plaintiff reclaimed Ac.5-00 of the suit property which was by then lying waste and converted it into cultivable land. He also deepened the well by 10 feet in1983. As the groundnut crop was not getting satisfactory income, the plaintiff left the land as grazing land for cattle. The plaintiff's rights became perfected by adverse possession. Because of raise in prices, defendants 1 to 5 postponed to execute the sale deed from January 1984. On the other hand they executed an agreement of sale for the suit schedule land in favour of defendants 6 to 8. Defendants 6 to 8 knew about the plaintiff's sale agreement and plaintiff's possession of the suit schedule land as purchaser from defendants 1 to 5. The said agreement does not bind the plaintiff. On 30-4- 1985 the 1st defendant informed the plaintiff that he and defendants 2 to 5 are prepared to execute the sale deed, as agreed upon, and asked the plaintiff to purchase stamp papers. Accordingly the plaintiff purchased the stamp papers at Gannavaram. The 1st defendant signed on the voucher book of the document writer and went to bring defendants 2 to 5 but he did not return. Since defendants 1 to 5 failed to execute the registered sale deed, the plaintiff was constrained to file the present suit.
The 1st defendant resisted the suit and denied the averments in the plaint in toto. Defendants 2 to 5 adopted the written statement filed by the 1st defendant. The 1st defendant denied the execution of the pronote dated 16-8- 1967 in favour of the plaintiff's wife. He also denied that his late father borrowed Rs.4,390-00 from the plaintiff's wife. The 1st defendant also denied the part payment of Rs.25-00 on 12-8-1970 said to have been endorsed by the borrower. He also denied the fact that he or his parents ever expressed their failure to discharge plaintiff's wife's debt and requested the plaintiff to purchase the suit property for Rs.34,000-00 redeeming the first charge debt due to V.V.Subba Rao while satisfying his wife's debt out of the balance of sale consideration. It is the contention of defendants 1 to 5 that they never offered the plaint schedule land for sale to the plaintiff and the alleged adverse possession of the plaintiff is false and untenable. In short, these defendants contended that the plaintiff has no legal or contractual right to seek specific performance of the alleged oral agreement against defendants 1 to
5. Defendants 6 to 8, who are alienees of the suit schedule property, supported the case of defendants 1 to 5 and contended that they are bonafide purchasers for value under an agreement of sale dated 2-8-1985. Defendants 1 to 8 filed additional written statement contending that the alleged oral contract dated 5-1-1973 is void under A.P. Land (Prohibition of Alienation) Act 1972 and under Section 17 of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1973. The plaintiff filed rejoinder contending that the provisions of A.P. Act 13 of 1972 and Act 1 of 1973 are not applicable and that the suit agreement is not void.
Based on the above pleadings the trial court addressed itself to the following issues and additional issues:-
ISSUES:-
1. Whether the pronote dated 16-8-1967 in favour of the plaintiff's wife is true?
2. Whether the endorsement of payment for Rs.25-00 dated 12-8-1970 is true?
3. Whether the oral agreement of sale dated 5-1-1973 between the plaintiff and defendants 1 to 5 in respect of plaint schedule property is true?
4. Whether the plaintiff perfected his title to the suit property by adverse possession?
5. Whether the agreement of sale of the suit property in favour of defendants 6 to 9 dated 2-8-1985 is true and binding on the plaintiff and, if so, defendants 6 to 8 are bonafide purchasers of the suit land?
6. Whether the plaintiff is entitled to the specific performance of the agreement of sale dated 5-1-1973 as prayed for?
7. Whether the plaintiff is entitled to the permanent injunction?
8. To what relief?
ADDITIONAL ISSUES:-
1. Whether the agreement is void under the provisions of A.P. Agricultural Lands (Prohibition and Alienation) Act, 1972?
2. Whether the agreement is void under the provisions of A.P. Land Reforms (Ceiling on Agricultural Holdings) Act 1973?
Based on oral and documentary evidence adduced by both the parties, the trial court found pronote dated 16-8-1967 (Ex.A.2) as true and disbelieved the oral agreement of sale dated 5-1-1973 set up by the plaintiff and held that the plaintiff is not entitled to specific performance of the agreement of sale dated 5-1-1973 and ultimately dismissed the suit. Hence the appeal. Sri M.Chandrasekhara Rao, the learned counsel for the appellant has assailed the judgment and decree of the trial court and contended that the oral agreement of sale dated 5-1-1973 has been proved beyond doubt by the plaintiff and the trial court, having given a finding that Ex.A.2 dated 16-8-1967 is true, ought to have decreed the suit as prayed for. He placed strong reliance on the various oral and documentary admissions made by the 1st defendant which form substantial evidence and the trial court ought to have relied on them as contemplated under Sections 17 and 18 of the Indian Evidence Act. He placed strong reliance on Exs.A.14 to A.18 which were admitted by the 1st defendant as D.W.2 and contended that they establish beyond doubt the agreement of sale dated 5-1-1973. The learned counsel for the appellant also contended that the purchase by defendants 6 to 8 is not bonafide since they are aware of the agreement of sale. He contended that under Section 3 of the Transfer of Property Act possession of the suit schedule property by the plaintiff is itself notice. It is the case of the plaintiff as unfolded from the pleadings and evidence that late Bobba Krishna Murthy and his father have borrowed Rs.4,390-00 from his (plaintiff's) wife Venkata Varalakshmi and executed EX.A.3 pronote dated 16-8-1967 and that they made part payment of Rs.25-00 and executed Ex.A.41 endorsement on 12-8-1970 and since they were unable to discharge the debt Krishna Murthy expressed to the plaintiff to adjust the pronote debt out of the sale consideration. The plaintiff was considering the proposal and after the death of Bobba Krishna Murthy, defendants 1 to 5 asked the plaintiff to purchase the suit land and on 5-1-1973 there was a mediation at Vijayawada and the plaintiff agreed to purchase the suit schedule land for Rs.34,000-00 and that out of the sale consideration the plaintiff paid Rs.7,701-00 to his wife in discharge of the pronote debt as per Ex.A.43 payment endorsement and out of the balance of the sale consideration he has discharged the decree of V.V.Subba Rao, who filed suit and obtained decree on the foot of Ex.A.5 pronote and paid Rs.2000-00 and odd towards electricity charges due by Krishna Murthy thereby paid the total sale consideration.
Sri T.Veerabhadrayya, the learned counsel appearing for respondents 1 to 5 contended that the plaintiff failed to establish that there was a concluded contract with specific terms and conditions. It is his contention that the burden is heavily upon the plaintiff to establish that there was an oral agreement dated 5-1-1973 and that the plaintiff failed to discharge his burden. He further submitted that presuming that there is an oral agreement the plaintiff was never ready and willing to perform his part of the contract. Specific performance of a contract is a discretionary remedy and the plaintiff should come to the court with clean hands. He submitted that mere agreement itself is not sufficient to grant a decree. In short, he supported the findings, judgment and decree of the trial court.
Sri P.M.Gopala Rao, the learned counsel appearing for respondents 6 to 8 supported the case of defendants 1 to 5 and contended that there is no concluded contract and the case of the plaintiff suffers from laches and hence it is liable to be rejected. It is also his contention that the relief is barred by limitation.
Taking into consideration the various submissions made on behalf of the appellant and the respondents, I will address myself to the crucial issue "Whether the oral agreement of sale dated 5-1-1973 between the plaintiff and defendants 1 to 5 in respect of the plaint schedule property is true?" The burden is on the plaintiff to prove the oral agreement of sale dated 5-1-1973 and it has to be examined how far the plaintiff has discharged his burden through the oral and documentary evidence. The suit land is an extent of Ac.10- 82 cents of dry land situate in R.S.Nos.232 and 234 of Balliparra village in the erstwhile Gannavaram Taluk, Krishna District. The said land originally belonged to one Vegunta Venkata Subba Rao of Eluru. It was purchased by Bobba Krishna Murthy for Rs.15,000-00 under the registered sale deed dated 26-6-1968. Ex.A.4 is the certified copy of the said sale deed. Bobba Krishna Murthy executed a pronote on the same date in favour of V.V.Subba Rao for the sale consideration of Rs.15,000-00. Ecx.A.5 is the certified copy of the said pronote. Krishna Murthy died in the year 1971. The 1st defendant is the son, the 2nd defendant is the widow and defendants 3 to 5 are the daughters of the said Krishna Murthy. Ramachandrayya is the father of Krishna Murthy who died in the year 1972. Krishna Murthy is no other than the maternal uncle of the plaintiff.
The case of the plaintiff is that Krishna Murthy and his father borrowed Rs.4390-00 from his wife Venkata Varalakshmi and executed Ex.A.2 pronote dated 16-8-1967 and that they made part payment of Rs.25-00 and executed Ex.A.41 payment endorsement on 12-8-1970. Subsequently the plaintiff was pressing for repayment of the said debt. So Bobba Krishna Murthy proposed to sell the suit land to the plaintiff and to adjust the pronote debt out of the sale consideration. The plaintiff was considering the said proposal and meanwhile Krishna Murthy died and defendants 1 to 5 expressed their inability to repay the suit debt and that on 5-1-1973 there was a mediation and in the presence of the mediators the plaintiff agreed to purchase the suit land for Rs.34,000-00 and that out of the sale consideration the plaintiff paid Rs.5,000-00 to defendants 1 to 5 on 15-1-1973 at Vissannapet and the plaintiff paid a further sum of Rs.7,701-00 to his wife in discharge of the pronote debt as per EX.A.43 payment endorsement and that out of the balance of the sale consideration he has discharged the decree debt of V.V.Subba Rao under EX.A.5 pronote and also paid electricity arrears due by Krishna Murthy. All these payments represent total sale consideration. It is also the plaintiff's further contention that on 15-1- 1973 the plaintiff was put into possession of the suit schedule property. The plaintiff examined himself as P.W.2 and it is in his evidence that the total sale consideration was fixed at Rs.34,000-00 and that it consisted of Rs.15,000- 00 with interest payable to V.V.Subba Rao, which has got first charge over the suit property, discharge of his wife's pronote debt to the extent of Rs.7,701- 00, electricity arrears and reconnection charges of Rs.2,124-90 and payment of cash of Rs.5,000-00 to defendants 1 to 5 and the agreement took place in the presence of mediators Kommana Surya Prakasa Rao (P.W.3), M.Sivaramabrahmam (P.W.4), Surapaneni Kutumbayya, Katragadda Kutumba Rao and V.V.Krishna Rao. He further deposed that he paid Rs.5,000-00 to defendants 1 to 5 on 15-1-1973 in the presence of P.Ws.3 and 4 and that he cancelled the pronote debt of his wife on the same day and possession of the land was delivered to him on the same day. P.W.3 who is known to both the parties and about the transaction between the parties, speaks about the finalization of the sale agreement. According to him, ten days subsequent to the finalization of the sale agreement, P.W.1 took his wife, P.W.4 and P.W.5 to Vissannapeta and Balliparra Karanam (P.W.8) was also present and P.W.1 paid Rs.5,000-00 to the 2nd defendant in their presence. His deposition discloses that he cancelled the pronote debt of his wife on the same day and he was put into possession of the suit property on the same day. In short, it is his contention that he performed his part of the contract and defendants 1 to 5 were postponing the execution of the decree. It is also in evidence that on 28-4- 1985 the 1st defendant came to the plaintiff and asked him to purchase the stamp papers for the sale deed and on 30-4-1985 the plaintiff and the 1st defendant along with P.W.9 went to Gannavaram and purchased stamp papers worth Rs.4,400-00 as the stamp duty was going to be enhanced from the next day onwards. It is in his evidence that after the purchase of stamp papers, the 1st defendant went to Vijayawada to bring defendants 3 to 5 and before the 1st defendant left for Vijayawada, P.W.8 obtained the signatures of the 1st defendant in the voucher book and register which were maintained by him. Subsequently the 1st defendant did not return from Vijayawada with his sisters. Hence the plaintiff filed the suit. The case of the plaintiff was supported by P.Ws.3 to 9 establishing that there was a mediation and an oral agreement took place on 5-1- 1973 at Vijayawada in the presence of the mediators. P.W.3 and P.W.4 are the mediators who were present at Vijayawada in whose presence the agreement of sale took place. Both of them speak about the mediation in the house of V.V.Krishna Rao at Vijayawada just before Sankranthi in January 1973. It is in their evidence that after lot of discussions defendants 1 to 5 were not in a position to discharge the debt owed by Bobba Krishna Murthy to P.W.1's wife. It was informed that the previous proposal of Krishna Murthy was that P.W.2 should take the suit land in consideration of discharging his wife's debt, paying of the electricity dues, paying of cash of Rs.5,000-00 and clearing the first charge debt of V.V.Subba Rao. It is also in evidence that defendants 1 to 5 agreed to take steps for raising the attachment of the suit land made at the instance of V.V.Subba Rao. Thus, the evidence of P.W.3 and P.W.4 establishes that there was an oral agreement that took place on 5-1-1973. The evidence of P.W.9 is cogent and establishes the various payments by the plaintiff resulting in the suit transaction. The veracity of his evidence has not been challenged in the cross-examination.
As against this, it is necessary to examine the evidence adduced on behalf of the defendants. The 2nd defendant has examined herself as D.W.1 and totally denied the case of the plaintiff. In cross-examination she admits that V.V.Subba Rao filed O.S.194 of 1980 against them and obtained a decree in Sub- Court, Vijayawada and states that the debt was discharged out of the sale proceeds of the suit land to defendants 6 to 8. She also admits that her late husband was indebted to Ampapuram Cooperative Credit Society and also owed money to Land Mortgage Bank. She further admits that her husband was indebted to Sitaramaiah. The 1st defendant has deposed as D.W.2. He denied the suit transaction but admits K.V.Sitaramaiah filing O.S. No.212 of 1969 and that he is also a party to that suit. He admits that Exs.A.14 to A.18 were written in his own hand. These are letters addressed by the 1st defendant to the plaintiff. These letters would clearly establish that defendants 1 to 5 have put the plaintiff into possession of the suit schedule property and the 1st defendant has been requesting further monetary help from the plaintiff. He accepts having received the amounts from the plaintiff and at the same time accused him of having paid the same in instalments. In EX.A.18 he admits the settlement and mediation made by his father's elder brother and others. Ex.A.19 is a post card dated 14-8-1978 addressed to the plaintiff by the Inspector of Central Excise, Rural Sector, Vijayawada. In this letter the Excise Inspector has demanded the plaintiff to sell the tobacco to the Board after obtaining required licence. This clearly establishes that the plaintiff has been put into possession of the suit schedule property in pursuance of the agreement of sale dated 5-1-1973. Exs.A.20 to A.33 are electricity receipts for the charges paid by the plaintiff and EX.A.35 is the declaration made by the plaintiff under A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. D.W.3 to D.W.6 are defendants 6 to 8. Their evidence only speaks of their purchasing the property and does not throw any light on the mediation resulting in oral agreement of sale that took place at Vijayawada.
On an overall appreciation of the entire evidence on record, there is consistency in the evidence of P.Ws.1 to 3 and P.Ws.8 and 9 which clearly establishes that parties are very closely related and that an oral agreement of sale took place on 5-1-1973 at Vijayawada in the presence of mediators who, in turn, are known to both the parties. The evidence of the 1st defendant, who deposed as D.W.2, lends support to the case of the plaintiff about the oral agreement of sale on 5-1-1973. His admission that Exs.A.14 to A.18 were written by him to the plaintiff is a clear admission about the agreement of sale and putting the plaintiff into possession in pursuance of the agreement of sale. This admission by the 1st defendant coupled with the evidence of P.W.3 and P.W.4 who are mediators, assumes significance in establishing the case of the plaintiff. A clear admission is a substantive evidence even though the party is not confronted with the statement. This has been clearly laid down by the Apex Court in a judgment reported in BHARAT SINGH Vs. BHAGIRATHI1. The aforementioned legal proposition has been reiterated in the latest judgment of the Apex Court reported in BISWANATH PRASAD Vs. DWARAKA PRASAD2. The aforementioned judgments make it clear that where the party to the suit admits a particular fact in the witness box it need not be put to him again and it is admissible in evidence under Sections 17 and 18 of the Indian Evidence Act. The trial court considered Exs.A.14 to A.18 and admits that there is some agreement and that even if such an agreement is proved, the plaintiff has not performed his part of the agreement. But the case of the defendants is one of total denial which indicates that the defendants have not placed true and correct facts before the court. The trial court on a detailed discussion has held that Ex.A.2 pronote is genuine and negatived the plea of forgery and at the same time has held that Ex.A.41 which is payment endorsement on Ex.A.2 is not signed by Bobba Krishna Murthy. But it is in evidence of P.W.21 that the father of the 1st defendant was a worldly-wise man and that he can write the document in his own hand and that on the date of payment of endorsement on Ex.A.2 he was suffering from brain tumor and was not able to write clearly. This explains the variation in the signature. The reasoning of the trial court that though Krishna Murthy was attacked with brain fever, the characteristic features in the letters of his signature cannot go away is unsustainable. By efflux of time there is every possibility of variation in signatures, more so to the person who is affected with brain fever. Hence I hold that the endorsement Ex.A.41 on Ex.A.2 is true and genuine.
The learned counsel appearing for defendants 6 to 8 contended that the suit is barred by limitation. It is his contention that the suit agreement is dated 5- 1-1973 and the suit was filed on 19-11-1985. On this aspect the learned counsel for the appellant submits that the plaintiff was put into possession of the suit schedule property in pursuance of the agreement of sale and that O.S. No.212 of 1969 was filed by K.V.Sitaramayya and he obtained a decree and attached the suit schedule property in E.P. No.77 of 1971 and the attachment was pending till 1983 and hence the question of limitation does not arise on the facts of the case. That apart, there is neither a pleading nor an issue before the trial court on this question. Hence there is no need to advert to this aspect and give a finding on the issue of limitation.
It is well settled that an oral agreement is legal and valid inasmuch as written agreement of sale. In Y.V.NARASIMHA SARMA Vs. S. APPALARAJU3 this court has held that under Section 54 of the Transfer of Property Act it is not necessary that an agreement of sale should be in writing and that there is no prohibition against an oral contract of sale. In every case where the plaintiff comes up with the plea of contract of oral sale the burden is upon the plaintiff to establish by cogent evidence that such an oral agreement took place between him and the defendant or defendants. It has to be examined how far the plaintiff has discharged this burden. It is in the evidence of the plaintiff that the total sale consideration was fixed at Rs.34,000-00 in pursuance of the mediation and oral agreement at Vijayawada on 5-1-1973. The sale consideration consisted of Rs.15,000-00 with interest payable to V.V.Suba Rao which has got first charge over the suit property; discharge of his wife's pronote debt to the extent of Rs.7,701-00; electricity arrears and reconnection charges amounting to Rs.2,124- 90 paise and payment of cash of Rs.5,000-00 to defendants 1 to 5. The aforementioned evidence was supported by the evidence of mediators and documents Exs.A.14 to A.18. From the facts and circumstances and the close relationship between the parties, it is not unnatural that the agreement of sale was not reduced to writing. The evidence of P.W.8 shows that on 30-4-1985 P.W.1, the 1st defendant and his son came to him for writing the document and that they have found out about the value of the land from the Sub-Registrar's office and after verification they purchased stamp papers worth Rs.4,400-00 and the stamp papers were purchased in the name of P.W.1. Exs.X.1, X.2, X.3 notice and receipts issued by the Sub-Registrar establish the purchase of stamp papers. All these facts and circumstances establish the case of the plaintiff. The evidence of defendants does not in any way disprove the case of the plaintiff except denying the case of the plaintiff in toto. The cumulative effect of the evidence and circumstances emanating from the record, as discussed by me, supra, goes in favour of the conclusion that there was an oral agreement of sale on 5- 1-1973 and in pursuance of the agreement of sale the plaintiff was put into possession of the suit schedule property and, therefore, the plaintiff is entitled to a decree for specific performance based on the oral agreement of sale dated 5-1-1973. Since the plaintiff has proved his possession from the date of agreement of sale he will be entitled to the relief of permanent injunction.
The plaintiff has set up the plea that he has perfected his title to the suit property by adverse possession. It is his case that he has been in continuous possession of the suit schedule property to the knowledge of the true owners. In a case of an agreement of sale when the party who obtained possession in pursuance of contract of sale acknowledges the title of the true owner, such acknowledgement excludes the theory of adverse possession. Adverse possession implies that it commenced in wrong and is maintained against right. The Apex Court had an occasion to deal with a case where purchaser was put into possession in pursuance of a contract and the purchaser claiming adverse possession. The Supreme Court in a case reported in ACHAL REDDI Vs. RAMAKRISHNA REDDIAR4 has held as follows:
"In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgement and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse."
The aforementioned decision was followed by the Apex Court in a judgment reported in ROOP SINGH Vs. RAM SINGH5. The Apex Court reiterated its earlier stand and held that permissive possession for long does not convert into adverse possession. Following the judgments of the Apex Court I find that the plaintiff is not entitled to claim the suit schedule property in adverse to the true owner but they are entitled to the decree for specific performance as prayed for. For the aforementioned discussion, I set aside the judgment and decree of the trial court and hold that the plaintiff is entitled to the relief of specific performance of agreement of sale dated 5-1-1973 by directing defendants 1 to 5 to execute and register the sale deed in respect of the plaint schedule property and in view of my finding that the plaintiff is in possession of the suit schedule property from 1973 there shall be a decree for permanent injunction restraining the defendants and their men from interfering with the plaintiff's possession and enjoyment. Suit, O.S. No.95 of 1985 is decreed to the extent as indicated above and the appeal is accordingly allowed. As the parties are closely related to each other, I award no costs both in the suit as well as in the appeal.
?1 A I R 1966 S C 405
2 A I R 1974 S C 117
3 1989 (2) A L T 653
4. A I R 1990 S C 553
5. (2000) 3 S C C 708
6. A I R 1966 S C 405
7. A I R 1974 S C 117
8 . 1989 (2) A L T 653
9 . A I R 1990 S C 553
10 (2000) 3 S C C 709
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