JUDGMENT
L. Narasimha Reddy, J.
1. The appellant filed O.S. No. 434 of 1986 in the Court of the I Additional District Munsif Magistrate, Guntur, against the respondents, for the relief of specific performance of an agreement of sale, dated 4-7-1973, and for consequential injunction. He pleaded that the mother of Respondents 1 and 2, by name Pullamma, executed the agreement of sale, for transferring an extent of 500 Sq. yards described, in the suit schedule, for a consideration of Rs. 3,250/- and a sum of Rs. 900/- was paid as advance on the date of agreement i.e., on 4-7-1973. It was pleaded that further sums of Rs. 400/- each, were paid on two occasions and that he was waiting for necessary clearance, to be obtained from the Government, by Pullamma, for the purpose of execution of the sale deed.
2. The appellant got issued a notice, dated 10-5-1986, Ex.A-5, stating inter alia that even while the agreement is subsisting, Respondents 3 and 4 started claiming that they have purchased the suit schedule property from Respondents 1 and 2, the legal representatives of the original owner, and that the alleged purchase of the property by Respondents 3 and 4 is not binding upon him. In the plaint, it was alleged that according to the terms of the agreement of sale, the vendor was under obligation to execute a sale deed within three months from the date of obtaining permission from the authorities under the Urban Land (Ceiling on Holdings) Act (for short ‘the Act’), by receiving the balance of consideration and till the date of filing of the suit, no intimation as to obtaining such permission was received.
3. On behalf of Respondents 1 and 2, a common written statement was filed. It was stated that their mother late Pullamma leased the open land with a thatched shed on it to the appellant herein on a monthly rent of Rs. 100/- and after her death, the appellant approached Respondents 1 and 2 with a request to sell the property, at a throw away price. It was alleged that when Respondents 1 and 2 expressed their unwillingness to part with the property, the appellant fabricated the alleged agreement of sale. They further pleaded that the property was sold in favour of Respondents 3 and 4, through a sale deed, dated 24-2-1986, and symbolical possession was also delivered.
4. Before the trial Court, PWs. 1 to 12 were examined on behalf of the appellant and Exs.A-1 to A-31 were marked. On behalf of the respondents, D.Ws. 1 to 7 were examined and Exs.X-1 to X-3 as well as Exs.C-1 to C-5 relating to the Commissioner’s report were also taken on record.
5. Through its judgment, dated 4-10-1990, the trial Court decreed the suit. Aggrieved thereby, the respondents filed A.S. No. 224 of 1990 in the Court of the I Additional District Judge, Guntur. The appeal was allowed on 9-2-1995. Hence, the second appeal.
6. Ms. Shakeera Bhanu, the earned Counsel appearing for Sri T.S. Venkata Ramana, the learned Counsel for the appellant, submits that the agreement of sale executed by the mother of Respondents 1 and 2 was lost by the appellant and through cogent oral and documentary evidence, he has proved the existence of the same. She contends that the trial Court had undertaken elaborate and extensive discussion, while reaching the conclusion that the agreement of sale, dated 4-7-1973, existed and that the lower appellate Court was not justified in disturbing the said finding. She further contends that whatever may have been the justification in rejecting the relief of specific performance by the lower appellate Court, once it was admitted by the respondents themselves that the appellant is in possession of the property as lessee, the decree for perpetual injunction, ought not to have been disturbed.
7. Sri G. Pedda Babu, the earned Counsel for the respondents, on the other hand, submits that having made reference to the agreement of sale, dated 4-7-1973, in the notice marked as Ex.A-1 and in the plaint, the appellant had chosen, not to present it before the Court, on noticing the obvious contradiction of his stands. He further contends that when the Act came into force only in the month of February 1976, there was no occasion for making a reference to the same in the agreement of sale, dated 4-7-1973, and this fact was sufficient to prove that the so-called agreement is non-existent or at least fabricated. As regards the relief of perpetual injunction, the earned Counsel submits that being a discretionary and equitable remedy, it cannot be extended to a person, who deliberately tried to mislead the Court.
8. The appellant filed the suit for the relief of specific performance and perpetual injunction. Two separate issues, touching on the same were framed. The appellant did not file the original of the agreement of sale before the Court. On the other hand, he filed a Xerox copy of the agreement as secondary evidence and it was marked as Ex.A-29. Extensive oral evidence was adduced to prove that the original of Ex.A-29 existed and that it was lost soon after the notice Ex.A-1 was issued. The Advocate, who issued Ex.A-1, was examined as PW.8.
9. One fact, which operates against the appellant in the context of proof of the agreement of sale, is that neither in Ex.A-1 nor in the plaint, he has stated that he lost the original agreement of sale. It is only during the course of evidence that he came forward with the plea that he lost the agreement. The conduct subsequent to the alleged loss of agreement does not instill confidence. Neither any report was submitted to the police nor any publication was issued in the Press, alleging that the agreement, was lost.
10. Even if there exists a semblance of truth in the plea of the appellant that the agreement existed, but was lost; there is a glaring inconsistency which stares at the entire episode. The agreement is dated 4-7-1973. The terms of the agreement were summed up by the appellant in his plaint. One of the terms is suimmarized in Para ‘4’ of the plaint, as under:
As per the terms of agreement of sale, the seller had to obtain permission from Urban Land Ceiling Authority to the effect that the said property is below the ceiling limits and within three months from the date of permission, the plaintiff had to pay the remaining sale consideration and get the regular sale deed written and registered.
11. The Act came into force only in February 1976 in the State of Andhra Pradesh. By the year 1973, when the agreement is said to have been executed, there were not even traces of the said Act. From the plea of the appellant in his plaint, it is clear that he had stated deliberate falsehood, in his anxiety to get a decree for specific performance. This important aspect was not noticed by the trial Court and the lower appellate Court had corrected the error committed by the trial Court, and thereby, set aside the decree for specific performance. This Court is not inclined to take any different view and the suit insofar as it relates to the decree for specific performance deserves to be dismissed.
12. Had the relationship between the parties to the suit was restricted to the one based on the alleged agreement of sale, the whole of the suit deserves to be dismissed in view of the finding on the said document. Though the appellant pleaded that he was delivered the possession on the basis of the agreement of sale, the respondents stated in their written statement that his possession over the suit schedule property is in the capacity of a lessee/tenant. Once, the respondents have admitted the possession of the appellant over the suit schedule property as lessee, they cannot be permitted to evict him, without initiating the procedure prescribed by law. Refusal to grant injunction in such cases would amount to granting liberty to the respondents to evict a tenant without having recourse to law. The possession of an individual over a property, which cannot be branded as that of a trespasser deserves to be protected, if necessary, by stipulating the conditions, in accordance with the terms of lease. The lower appellate Court did not advert to this aspect.
13. For the foregoing reasons, the second appeal is allowed in part, setting aside the judgment of the lower appellate Court in A.S. No. 224 of 1990 insofar as it had set aside the decree for perpetual injunction granted in favour of the appellant. Consequently, O.S. No. 434 of 1986 shall stand dismissed insofar as it related to the relief of specific performance. However, a decree for perpetual injunction granted by the trial Court, shall remain in force, directing that he shall not be evicted from the suit schedule property, except through due process of law.
14. There shall be no order as to costs