JUDGMENT
V. Bhaskara Rao, J.
1. This Second Appeal is filed against the Judgment and decree in A.S. No. 156/1992 on the file of the Second Additional District Judge, East Godavari at Rajahmundry dated 14-2-1994 confirming the judgment and decree in O.S.No. 11/1982 confirming the judgment and decree in O.S.No. 11/1982 on the file of the Subordinate Judge, Rajahmundry, who decreed the suit of the plaintiff for specific performance of Ex. A-1 agreement of sale dated 19-10-1978 while declaring that Ex. B1 agreement for sale dated 24-104973 propounded by defendant No. 9 – appellant herein as false and fabricated.
2. The brief facts giving rise to this second appeal are as under:- The land bearing RS. No. 144 measuring 2 acres (0.809 hectares) on the southern side out of total extent of 9 acres 13 cents situated at Ramadasupeta Panchayat, Rajahmundry Rural of East Godavari District, originally belonged to Jala Venkayamma, mother of respondent Nos. 2 to 7 and mother-in-law of respondent No. 8 herein. Jala Venkayamma entered into an agreement of sale of the above land with respondent No. 1 herein for a consideration of Rs. 14,000/- and she executed a registered agreement of sale on 19-10-1978 having received a sum of Rs. 6,000/- as part payment and she agreed to receive the balance of sale consideration of Rs. 8,000/- at the time of registration of sale deed within three months thereof. Respondent No. 1 has been ready and willing to perform his part of the contract and got ready to pay the balance sale consideration and requested Jala Venkayamma to fix up a date and time for the execution and registration of the sale deed, but she went on postponing the same under one pretext or the other. Respondent No. 1, therefore, got a registered notice issued on 13-12-1981 intimating his readiness to perform his part of the contract and calling upon her to fix up a date to execute and register the sale deed, but she did not reply nor she fulfilled her part of the contract though she received the notice on 18-12-1981. Hence, respondent No. 1 filed a suit for specific performance of agreement for sale dated 19-10-1978 against Jala Venkayamma. She died during the pendency of the suit O.S.No. 11 /1982 on the file of the Subordinate Judge, Rajahmundry and thereupon respondents No. 2 to 7 as well as her son Jala Venkateswara Rao were brought on record as her legal representatives. Subsequently Jala Venkateswara Rao also died and hence respondent No. 8 herein was brought on record as his legal representative.
3. While so, respondent No. 1 came to know that respondent Nos. 2 to 7 and husband of respondent No. 8 in collusion with the appellant brought into existence a fabricated agreement of sale purportedly executed by late Jala Venkayamma and on the strength of such fabricated agreement, stage-managed proceedings in OS.No. 651/1986 on the file of Principal District Munsif, Rajahmundry, who decreed that suit in favour of the appellant and the above proceedings culminated in a registered sale deed. Thereupon, respondent No. 1 filed I.A.No. 2458/90 seeking amendment of the plaint and the same was allowed on 25-2-1991 incorporating paras 5 (a) to 5 (c)and para 7. The appellant was impleaded as defendant No. 9. It is thus contended that the agreement for sale dated 24-10-1973 propounded by the appellant is a rank forgery and that the proceedings in OS.No. 651/1986 on the file of Principal District Munsif, Rajahmundry, as well as decree therein are not binding upon him and he sought for a declaration to that effect by adding para 8 (e) by way of amendment of the plaint besides the reliefs which were originally sought for.
4. The original owner Jala Venkayamma who was impleaded as defendant No. 1 filed a written statement admitting that the registered agreement of sale in favour of respondent No. 1 dated 19-10-1978 was true, but she averred that only three months time was fixed for fulfilment of the terms of the agreement and that the time was the essence of the contract. She also averred that respondent No. 1 was not ready and willing to perform his part of the contract and that he was not entitled to seek specific performance of the contract.
5. The appellant-defendant No. 9 filed a separate written statement. His case is that he filed OS.No. 651/1986 on the file of Principal District Munsif, Rajahmundry, against respondent Nos. 2 to 7 and husband of respondnent No. 8 and obtained a decree against them and in pursuance of the said decree, he obtained a registered sale deed by the Court of First Additional District Munsif, Rajahmundry. As he obtained an agreement of sale and was in possession of the property pursuant to the said agreement since 1973, the suit being subsequent one does not convey any rights. The decree obtained by him is valid and it cannot now be challenged. It is also averred that respondent No. 1 had brought into existence the suit agreement in collusion with respondent Nos. 2 to 7 and husband of respondent No. 8 with the sinister motive to grab the property and the non-appearance of respondent Nos. 2 to 7 and husband of respondent No. 8 shows collusion between themselves and respondent No. 1.
6. On the above pleadings, the following issues have been framed:-
1. Whether the time is essence for the suit contract?
2. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 19-10-1978?
3. To what relief?
The following additional issues have been framed Subsequently.
Additional issue dated 24-2-1992:
“Whether the suit agreement is binding on the 9th defendant”.
Additional issue dated 13-3-1992:
“Whether the plaintiff entitled for the relief of declaration as prayed for.”.
Additional issue dated 16-4-1992:
“Whether the agreement of sale in favour of the 9th defendant is true, valid and binding on the plaintiff”.
7. The parties went to trial on the above issues. Respondent No. 1 examined himself as P.W.1 and he also examined P.Ws.2 to 6 on his behalf and he got Exs. A-1 to A-5,Ex-Cl, Exs. XI and X2 marked on his behalf. The appellant examined himself as D.W.1 and he also examined D.Ws.2 and 3 and got Exs. Bl to B4 marked on his behalf. The trial Court scrutinised the above oral and documentary evidence and held that the suit agreement dated 19-10-1978 was binding on the appellant, whereas Ex.Bl agreement dated 24-10-1973 was brought into existence subsequent to the death of Jala Venkayamma in order to defeat the rights of respondent No. 1 under Ex.A-1 and that the same was neither true nor valid nor binding on respondent No. 1 and accordingly the suit of respondent No. 1 has been decreed with costs holding that the respondent No. 1 was entitled for specific performance of Ex.A-1 agreement of sale dated 19-10-1978. Aggrieved by the above findings, judgment and decree, the appellant filed the appeal A.S.No. 156/1992 on the file of the II Additional District Judge, East Godavari at Rajahmundry, while respondent No. 1 filed cross-objections challenging certain observations of the trial Court regarding the character and demeanour of P.Ws.2 to 5 and sought for expunging the same. After hearing both sides, the lower appellate Court formulated the following points for determination:-
1. Whether time is the essence of the suit contract?
2. Whether the plaintiff is entitled for specific performance of agreement of sale dated 19-10-1978?
3. Whether the suit agreement Ex.A-1 is binding on the 9th defendant?
4. Whether the agreement of sale in favour of the 9th defendant is true valid and binding on the plaintiff?
5. To what relief?
On point No. 1. the finding of the trial Court that time is not the essence of the contract is confirmed; on point Nos. 3 and 4 it is held that Ex.A-1 was executed by defendant No. 1 (reference to Jala Venkayamma, original owner) and that Ex.B-1 is fabricated subsequent to her death. In the course of discussion of these points, the lower appellate Court held that respondent No. 1 was always ready and willing to perform his part of the contract; that the suit schedule land has been in possession of Jala Venkayamma, but not the appellant and that Ex.X-2 entries in the stamp vendor’s Register of Vallur show that the stamp on which Ex.B-1 was written was purchased by Alluri Ganniah whereas the appellant as D.W.1 asserted that he himself purchased the said stamp and he signed in the stamp vendor’s Register and did not affix his thumb impression therein. It is held that this factor clinches the issue that Ex.B-1 was fabricated. On point No. 2, the lower appellate Court held that in view of his findings on points No. 1, 3 and 4 in favour of respondent No. 1, he is entitled for specific performance of the agreement Ex.A-1 and that it is binding on the appellant also. Accordingly the appeal as well as cross-objections are dismissed. Hence, this Second Appeal.
8. The appellant raised several grounds to assail the judgments of both the Courts below and it is asserted that the following substantial questions of law will arise for consideration, vide Ground No. 12:
(i) Having found very rightly that the testimony of P.W.2 the attestor is half-hearted and P.W.3 can accommodate any of the parties for consideration and no useful purpose will be served by examining P.W.4 and P.W.4 the pleader’s clerk can stoop to any level for his personal benefit coupled with the credentials of the 1st respondent/ plaintiff who began purchasing one defendant or the other (the L.Rs. of the deceased executant of the suit agreement of Ex.A-1) to defeat the right of D.W.1, and having further opined that the unreliable testimony of P. Ws.2 to 5 did not improve the case of the 1st respondent, are the two Courts below justified in granting a decree against the appellant.
(ii) Can the findings based upon no evidence are (sic. be) sustainable in law.
(iii) How can be any unusual and motivated registration of a subsequent non-possessory agreement in Ex.A-1 not a document required to be registered, a constructive knowledge of which the (sic. be) imputed to the appellant herein, an earlier purchaser under a possessory agreement in Ex.B-1.
(iv) Assuming without admitting that Ex.B-1 is not real, how can the Court below pass any decree in favour of the 1st respondent, in the absence of any evidence on the sole ground that Ex.A-1 is a registered one”.
9. A bare reading of the above questions formulated by the appellant in para 12 of the grounds would show that none of them is a pure question of law. When this position was pointed out at the very outset, Mr. Suryanarayana, learned counsel for the appellant contended that re-appraisal of evidence is permissible even in a second appeal if the findings reached by the Courts below are perverse and he relied on the judgments in Ajab Singh v. Shital Puri, ; Hira Lal v. Gajjan, ; Jagdish Singh v. Natthu Singh, and K. Koteswara Rao v. D. Gangamma, .
10. In the Judgment cited supra (1), it is held:-
“There is no blanket bar in law to the High Court’s power in second appeal to interfere with the finding of fact recorded by lower Court. While as a normal rule the finding of fact recorded by the lower appellate Court, even if the appreciation of evidence made by it is patently erroneous and the finding recorded in consequence is grossly erroneous, has to be accepted in a second appeal, the High Court where it is satisfied that the lower appellate Court has ignored the weight of evidence on record altogether, would be justified in re-appraising the evidence and giving its own conclusion”.
In the judgment cited supra (2), it is held,
“However, when the first appellate Court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the Court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.”
In the judgment cited supra (3), it is held,
“………..As to the jurisdiction of the High Court to 0reappreciate evidence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.”
In the judgment cited supra (4), it is held,
“A finding of fact which is not supported by any evidence can be questioned Under Section 100 of the Code of Civil Procedure. It should be a case where the evidence which is accepted by the lower appellate Court, no reasonable person could” have accepted and that really amounts to saying that there is no evidence at all. In such circumstances, any finding by the lower appellate Court on such evidence is questionable Under Section 100 of the Code of Civil Procedure”.
11. On the basis of the above catena of decisions, Mr. Suryanarayana, learned Counsel for the appellant contended that a dispassionate assessment of the evidence of P.Ws.2 to 5 would go to show that Ex.Bl agreement of sale dated 24-10-1973 is true and valid and therefore, Ex.A-1 agreement of sale dated 19-10-1978 though registered, does not confer any title upon respondent No. 1. On the other hand Mr. M.V. Durga Prasad Rao, learned Counsel for respondent No. 1 contended that though P.Ws.2,4 and 5 tried to accomodate the appellant to some extent, their testimony as to the execution, attestation and passing of consideration under Ex.A-1 is in no way shaken and it is the totality of the evidence that is to be considered and testing the entire evidence on the anvil of the entries in Ex.X-2, it is evident that Ex.B-1 is rank forgery and on the contrary Ex.A-1 has been admitted by its executant Jala Venkayamma in her written statement.
12. I carefully considered the above contentions and embarked upon the reappraisal of relevant evidence on record since the learned counsel for the appellant vehemently contended that the findings of both the Courts below are perverse and erroneous. On a careful perusal of the entire oral and documentary evidence adduced by both the parties and upon earnest consideration of the findings recorded by the trial Court and the first appellate Court, I am unable to find any force in the contentions raised by Sri Suryanarayana, for the following reasons.
13. The following circumstances emerge from the above evidence.
(i) The original owner Jala Venkayamma admitted the execution of Ex.A-1 in her written statement. At the same time there is not even a whisper of Ex.B-1 in her written Statement. What all she averred was that time was the essence of the contract and that only three months time was fixed for fulfilment of the terms of the agreement, Ex.A-1, and that respondent No. 1 was not ready and willing to perform his part of the contract. Neither in the cross-examination of P.Ws.1 to 6 nor in the evidence of D.Ws.1to 3 it is sought to be shown as to when exactly respondent No. 1 was put to notice of Ex. B-1.
(ii) When respondent No. 1 issued a legal notice Ex: A-2 dated 13-12-1981 requesting her to execute the registered sale deed by accepting the balance of consideration, she did not choose to reply. That is the earliest stage when Jala Venkayamma could have stated about Ex.B-1 if it was in existence by then.
(iii) Ex.B-1 did not see the light of the day till the suit O.S.No. 651/1986 was filed against sons and daughters of Jala Venkayamma. Evidently Jala Venkayamma was no more by then. What transpired between 1973 and 1986 is a mystery. It is a long span of 13 years. There is nothing to show that the appellant ever asserted his rights under Ex.B-1 at any time before any authorities to the knowledge of respondent No. 1. Added to it, Ex.A-1 is a registered agreement of sale and a suit was already filed in the sub-Court about 4 1/2 years prior to O.S.651/86 and Jala Venkayamma’s sons and daughters, are impleaded as legal representatives in the suit O.S.No. 11/1982. Inspite of an opportunity being given, they did not file any written statement raising the plea that there was a prior agreement of sale Ex.B-1 in favour of the appellant.
(iv) The possession of the suit schedule land remained with Jala Venkayamma though there is a recital in Ex.B-1 that the appellant was put in possession of the land. It is note-worthy that the appellant did not file either adangal or land revenue receipt to establish his possession.
(v) The appellant in his evidence as D.W.1 testified that he himself purchased the stamp on which Ex.B-1 was scribed from a stamp vendor at Vallur as stamps were not available at Rajahmundry. There is nothing on record to show that stamps were not available at Rajahmundry at the relevant time. Ex.X.2 Stamp Vendor’s Register belies the above version inasmuch as the entry against serial Nos. 696, 697 and 698 show that one Alluri Ganniah has purchased the stamp and he affixed his thumb impression, whereas D.W.1’s version is that he signed the Register and did not affix the thumb impression.
14. After evaluating the evidence adduced by both parties, the trial Court as well as first appellate Court have found that Ex.A-1 is true, valid and binding upon the appellant herein and that Ex.B-1 is not true and it appears to have been got up subsequent to the death of Jala Venkayamma. Even on a reappraisal of evidence on record and in view of the circumstances set out above, I have also reached the same conclusion. Men may lie, but circumstances do’ not. The circumstances set out above especially Ex. X-2 Stamp Vendor’s Register which is a clinching circumstance according to both the Courts below lead to the only conclusion that Ex.A-1 agreement of sale is true, valid and binding and it was for consideration. I am unable to take a different view. As a corollary to the above finding, I have also no hesitation to hold that Ex.B-1 agreement of sale dated 24-10-1973 propounded by the appellant is not true and it has to be held that the proceedings in O.S.No. 651/1986 on the file of Principal District Munsif, Rajahmundry and the consequential execution proceedings are all illegal and do not clothe the appellant with any rights in respect of the suit schedule land. That is insofar as Exs. A-1 and B-1 are concerned.
15. It is next contended by Mr. Suryanarayana that since cancellation of sale deed which was executed by the Additional District Munsif, Rajahmundry pursuant to the decree in O.S.No. 651/1986 is not sought for, the decree under appeal is illegal. On the other hand, Mr. Durga Prasad learned counsel for respondent No. 1 contended that there need not be a relief for cancellation of a fictitious document and relied on a judgment in A. Madhava Rao v. P. Rukmini Bai, (D.B.).
16. In the above judgment, a Division Bench of this Court held:
“Only in cases where a sale is challenged on the ground of fraud, coercion, or undue influence; and/or on some such other grounds, the person alleging sale as void on such grounds is required to file a suit for cancellation of the sale deed and so long as the sale deed is not cancelled by a Court of competent Jurisdiction, it continues to be a valid document. But in a case of the present nature, where the plea is that there was no sale at all, it is not necessary for the party setting up such a plea to file a suit for. cancellation of any such fictitious document”.
17. Turning to the case on hand, it is noteworthy that Ex.B-1 agreement of sale relied upon by the appellant was not a true and valid document. Evidently no rights flow from that document and all the consequential proceedings including execution of sale deed Ex.B-4 have to be treated as non-est. It/is not as though the document came into existence by playing fraud, coercion or undue influence so as to necessitate a relief of cancellation of such a document as held in the above judgment. I, therefore, do not find any force in the contention of Mr. Suryanarayana.
18. It is lastly contended on behalf of the appellant that there is no proof that respondent No. 1 was ready and willing to perform his part of the contract and that it is an essential condition for granting a decree for specific performance of contract. I adverted to the evidence on this aspect and I do not agree with the above contention. Both the Courts below have specifically recorded a concurrent finding that respondent No. 1 was always ready and willing to perform his part of the contract and accordingly the contention of Mr. Suryanarayana is repelled.
19. Adverting to the ground No. 12 which is extracted above, it is no doubt true that the trial Court passed certain observations regarding the demeanour of P.Ws.2 to 5 and the first appellate Court also found that there is justification in the said observations, but all that does not help the appellant in any manner. Apart from the oral testimony of P.Ws.2 to 5, the documents and the circumstances set out as 1 to 5 would clinch the issue and hence it cannot be contended that the findings of the Courts below were based upon no evidence.
20. As regards the other contention that Ex.B-1 (sic. Ex.A-1) is a non-possessory agreement while Ex.B-1 is a possessory agreement, it is needless to repeat that Ex.B-1 is not a true document and the so-called plea of possession being handed over under Ex.B-1 is only a myth and both the Courts below have concurrently found that it was Jala Venkayamma who continued to be in possession of the suit schedule property and I confirm the same.
21. For all the reasons given above, I am unable to find any merit in any of the contentions raised by the appellant and hence the appeal is liable to be dismissed.
22. In the result, the appeal is dismissed with costs confirming the findings, judgment and decree of the Court below.