ORDER
L. Narasimha Reddy, J.
1. This is an appeal filed unsuccessful plaintiff in O.S.No.29 of 1982 on the file of the Additional Subordinate Judge, Tirupati.For the sake of convenience the parties are referred to as arrayed in the suit.
2. The plaintiff filed the suit pleading that he entered into an agreement of sale on 20-8-1980 for purchase of plot No.29 Sri Venkataramana Layout of Tirupati for a consideration of Rs.28,400/-. On the date of agreement he paid an amount of Rs.10,000/-. There after he paid rs.1,000/- on 18-10-1980 and Rs.10,000/- on 5-11-1980. The plaintiff offered to pay the balance of Rs.7,400/- to the 1st defendant and requested him to execute a sale deed. However since the 1st defendant was dodging the matter, he got issued a legal notice dated 6-8-1981 calling upon the 1st defendant to receive the balance of consideration and execute the sale deed.
3. The 1st defendant in turn got issued a reply dated 20-8-1981 wherein he admitted the execution of agreement of sale, but took the plea that since the balance of consideration has not paid within two months the advance of Rs.10,000/- stood forfeited. In the reply 1st defendant admitted receipt of Rs.1000/- on 18-10-1980 and Rs.5000/- on 5-11-1980 but pleaded that the said amount was not treated the payment of balance of consideration but towards a hand loan.There after the plaintiff has also received another notice dated 21-8-1981 said to have been issued through one V. Muniswami Chetty and his three sons claiming that they have claim of interest in the property and the 1st defendant is not entitled to sell the same.
4.According to the plaintiff the said notice was got issued by the 1st defendant himself. He purchased the father of the plaintiff and other family members who promised to settle the matter. According to the plaintiff at one point of time the father of the 1st defendant has informed him that the defendant was demanding Rs.10,000/- over and above the agreed consideration. However after some time the father of the plaintiff had ultimately said that the 1st defendant is not willing to sale the property at all. With these contentions he filed the suit for specific performance of the contract of sale.
5. The first defendant filed a written statement almost reporting the contents of his reply notice dated 20-8-1981. He admitted the execution of the agreement and receipt of Rs.10,000/- towards advance. He treated the amount of Rs.11,000/- paid by the plaintiff is hand loan. The 1st defendant alleged that the agreement is cancelled on account of failure on the part of plaintiff to pay the balance of consideration within the time stipulated under the agreement. The 1st defendant also pleaded that he had already sold the property in favour of third party.
6. The plaintiff made certain enquiries there after he came to know that the 1st defendant sold the property in favour of the 2nd defendant under sale deed dated 22-6-1981. Threfore he impleaded the 2nd defendant by filing I.A.130 of 1983, which was ordered on 29-8-1983.
7. On being impleaded as 2nd defendant, she filed written statement bringing to the notice of the sale the factum of her purchase of the suit schedule property. Defendant No.2 has also claimed that she entered into an agreement with the plaintiff on 4-2-1980 for purchase of suit schedule property in Venkataramana layout for a consideration of Rs.23,000/-, on the date of agreement she paid Rs.12,000/- and there after the sale deed was executed. She has incorporated the pleas taken by the 1st defendant also.She has also pleaded that the plot purchased by her is different from the one described in the suit schedule property.
8.The 2nd defendant filed an additional written statement on 1-8-1988 claiming that the suit schedule property is different from the one purchased by her.
She filed another written statement on 14-12-1987 claiming that she is a bona fide purchaser of plot NO.9 and she has no knowledge abut the agreement of sale between the plaintiff and the 1st defendant. She has also pleaded that she had took a sale and has undertaken other developmental activities. A third additional written statement was also filed on 12-12-1988. The plaintiff filed a rejoinder stating inter alia that plot No.29 which was agreed to be sold to him has been renumbered as plot No.9 and in the revised layout only the boundaries changed and the location of the plot to be the same.The plaintiff also filed an I.A. to amend the plaint, to incorporate certain pleadings and also to amend the prior as well as the schedule. The application was rejected by this court and that resulted in amendment of the plaint.
9. In answer to the rejoinder, 2nd defendant filed an additional written statement on 12-12-1988 disputing the claim of the plaintiff, she reported that plot No.29 is different from plot No.9. Similarly the 1st defendant also filed two additional written statements touching the various aspects.
On the basis of the pleadings before it the trial court framed the following issues and additional issues.
1. Whether the time was agreed specifically to be the essence of contract as pleaseded by defendant?
2. Whether the plaintiff voluntarily waived the contract by agreeing to forfeit the advance of Rs.10,000/- paid on 20-8-1980?
3. Whether the payments of Rs.1000/- on 18-10-1980 and Rs.10,000/- on 5-11-1980 towards the suit contract is true, valid and binding on defendants?
4. Whether the amount of Rs.11,000/- covered by receipt dated 5-11-1980 was towards a hand loan only?
5. Whether the defendant is not liable to execute the sale deed on the ground that he has no perfect title?
6. To what relief?
The following additional issue framed on 5-3-1984:
1. Whether the suit plot is re-numbered as plot No.9 subsequently and if it is the same plot which was agreed to be sold to the plaintiff under agreement dated 20-8-1980?
The following additional issues framed on 20-12-1988:
1)Whether the plaintiff is entitled for specific performance in respect of the property covered by the schedule of the registered rectification deed dated 15-10-1971 as prayed for in the rejoinder?
The following additional issues framed on 7-12-1990 as per order on I.A. No.37 of 1990:
1. Whether the 2nd defendant had knowledge about the agreement of sale in favour of the plaintiff by the 1st defendant in respect of the amended scheme of the plaint?
Whether the 2nd defendant was a bonafide purchaser for value of the site covered by her sale deed dated 22-6-1981?
plaintiff examined himself as P.W.1. He also examined P.Ws.2 and 3 and marked Exs.A.1 to A.13. None of the defendants examined themselves as witnesses. The husband of the 2nd defendant examined as D.W.1 and D.Ws.2 to 9 were also examined on their behalf. They filed documents Exs.B.1 to B.23. Exs.X.1 to X.3 were marked through P.W.3.
10. On an appreciation of oral and documentary evidence the trial court found that time was not essence of the contract, the plaintiff did not waive the contract by agreeing the forfeiture the advance of Rs.10,000/-, the plaintiff has also paid an amount of Rs.11,000/- in addition to advance of Rs.10,000/-, and the said amount of Rs.11,000/- was not towards hand loan but was towards part payment of the consideration.
The trial court however held that the suit schedule property in plot No.29 and it is not the same, as the plot No.9 which was purchased by defendant No.2. It has also held that the 2nd defendant is a bona fide purchaser without notice. In view of these findings it dismissed the suit through its judgment dated 21-9-1989. Hence the appeal filed by the plaintiff.
The 2nd defendant also filed cross objections aggrieved by the finding that the agreement of sale dated 4-2-1980 in her favour.
11. In so far as the findings are against her.
Sri C.V. Nagarjuna Reddy, the learned counsel for the plaintiff submits that it is a matter of record that the 1st defendant purchased plot No.29 under sale deed dated 20th August, 1967 marked as Ex.A.2 and on account of certain revision of layout, certain re-alignment as to boundaries took place, the property continued to be the same and the deed of rectification dated 15-10-1971 marked Ex.A.8 clearly establishes that on account of re-alignment of the layout or boundaries, the location of the plot do not undermine a change and it is only the numbering and boundaries that has changed. In that view of the matter the finding of the trial court that plot No.29 and 9 are not one and the same cannot be sustained. It is his further contention that the 2nd defendant deed have the knowledge of the agreement of sale dated 20th August 1980 marked as Ex.A.1 between the plaintiff and the defendant No.1 and as such she is not a bona fide purchaser without notice. According to him Ex.X.2 clinchingly establishes the knowledge of the 2nd defendant about the facts and circumstances of agreement of sale between plaintiff and 1st defendant. He has also made certain other submissions touching on the subsidiary aspects and ultimately submits that the trial court ought to have decreed the suit.
12. Though the 1st defendant is served in this appeal, he did not choose to enter appearance.
Sri T. Veerabhadrayya, learned counsel for defendant No.2 submits that the trial court had on comparison of the boundaries of the plot Nos.29 and the 9 of the said layout particularly with reference to the layouts marked as A.9 and 11 had arrived at a correct and proper conclusion that the two plots are different from each other, and the finding of the trial court cannot be found fault with. According to him the agreement of Ex.A.1 was in respect of plot No.29 and by no stretch of imagination, in the name of specific parties in that agreement there cannot be a decree for execution of sale deed in respect of Plot No.9. As regards the notice to defendant N.2 the learned counsel submits that on the basis of it Ex.X2 does not gain the confidence of the court and at any rate it has not been proved in accordance with the procedure stipulated under the Evidence Act. Once Ex.X.2 cannot be relied upon there is no other evidence to contribute knowledge of the transaction between plaintiff and defendant No.1 and 2 and the contention of the appellants cannot be accepted.
13. The learned counsel also submits that the evidence on record shows that the plaintiff was not ready and willing to perform his part of the contract and the equitable relief of specific performance cannot be extended to the plaintiff who has committed default.
In view of the submissions of the learned counsel for the parties the points that arises for consideration in this appeal are:
a) Whether the plot No.29 and 9 of Venkataramana Layout are one and the same?
b) Whether the 2nd defendant had the knowledge of the agreement of sale between the plaintiff and defendant No.1? and
c) Whether the plaintiff was ready and willing his part of the contract as contemplated under the provisions of Specific Relief Act.
14. The property, which is agreed to be sold under Ex.A.1, is plot No.29. The extent as well as the boundaries have been furnished. The execution of Ex.A.1 is not disputed by defendant No.1. The only objection taken by defendant No.1 was that the plaintiff failed to pay the balance of consideration within two months from the date of Ex.A.1 and as such the agreement stood cancelled and the amount of Rs.10,000/- paid as advance, stood forfeited.
15. The 1st defendant also did not dispute the factum of receiving Rs.11,000/- subsequent to Ex.A.1. More over he treated the said amount as hand loan. As observed earlier defendant No.1 though filed written statement as well as two additional written statements and has cross-examined the witnesses, examined on behalf of plaintiff, has not chosen to enter the witness box. On an appreciation of the evidence before it, the trial court found that the claim of the 1st defendant is that the time was essence of the contract and that the amount of Rs.11,000/- paid by the plaintiff was only towards hand loan cannot be accepted. When the 1st defendant has not chosen to speak about the __________as other aspects of the agreement Ex.A.1 the court is left no alternative except to accept the version of the plaintiff in that regard.
16. Whether it is open to the 2nd defendant who is a subsequent purchaser to plead as to the readiness and willingness on the part of the plaintiff will be considered at a later stage while dealing with the question No. C. One of the important questions is as to the identity of the property informed in the suit as well as in the appeal. It is a matter of record that the property agreed to be sold under Ex.A.1 is plot No.29. The 1st defendant did not inform the plaintiff either at the time of negotiations, or through reply notice that the plot No.29, which he purchased under Ex.A.2 has undergone certain changes as to alignment under Ex.A.8.He did not plead anything touching on this aspect in the written statement. It was only when the 2nd defendant through her written statement claimed that he property purchased by her is plot No,.9 and not plot No.29, which is agreed to be sold under Ex.A.1 is that the plaintiff had undertaken further enquires about it. The parties have adduced extensive evidence touching on this aspect.
The trial court in view had formulated the correct conclusion on this aspect.
” There is certain distinction between the case where the site remains the same but the plot number alone gets changed; and the case where not only the plot number but also the location of the site also be changed.”
In the light of this it has to be seen as to whether the plot which was earlier numbered as 29 with certain boundaries remain the same but later on a new number was assigned to it and the boundaries got realigned; or the location of the said plot itself has changed.
17. As observed earlier plot No.29 was purchased by defendant No.1 under Ex.A.2. The extant and boundaries were mentioned therein. It has come in evidence that in the year 1968 the layout was changed on account of certain reasons. It was in the light of this change that Ex.A.8 came to be executed by the vendor of defendant No.1.
Ex.A.8 itself categorically stated that:
” Further the said plot No.29 under Ex.A.2 at the instance of the Municipality certain changes as to roads etc., were undertaken and as a result the plot No.29 was assigned Plot No.9.”
Ex.A.8 is a rectification deed with changed boundaries. If plot No.29 was different from plot No.9, it needed a separate sale deed and a deed of rectification could not have served the purpose. It was not as if the plot No.29 which was sold under Ex.A.2 continued to be with the 1st defendant and he secured certain other property under Ex.A.8. Though a plea was raised by the 2nd defendant that the family of defendant No.1 had 2 or 3 places in the said layout, nothing was elicited in the evidence that the 1st defendant has any other place except the one that was agreed to be sold to the plaintiff.
In the pleadings the 2nd defendant claimed that she is not aware of any rectification deed. D.W.1 is the husband of 2nd defendant.
In the additional written statement dated 1-8-1988 the 2nd defendant stated as under:
” This defendant is not aware of the rectification deed referred in the amended plaint.”
D.W.1 who is the husband of the 2nd defendant in his cross-examination stated as under:
” I perused original rectification deed in the suit property at the time of the bargaining talks. The rectification deed was in faour of D.W.1. I read the said deed.The rectification deed was in respect of some mistakes in the schedule of the sale deed in favour of D.W.1 —– Plot No.9 is covered by rectification deed.”
P.W.1 has categorically stated in his evidence as under:
” By the date of Ex.A.2 it was only a proposed layout, and that he sold the plots as per the proposed layout. He told me that subsequent to Ex.A.2 the layout was approved in the approved layout the plot numbers were changed and the roads were also shifted. Consequently, the boundaries were also changed but the