- (1.) These appeals have been preferred against the judgment and order dated 10.6.2003 by the High Court of Judicature, Andhra Pradesh at Hyderabad in C.C.C.A. Nos.34 and 33 of 1991 and C.C.C.A.No. 92 of 1993, by way of which the appeals filed by the respondents against the common judgment and decree dated 22.3.1991, in O.S. No.30 of 1984 and O.S. No.135 of 1984, passed by the court of the Additional Chief Judge, City Civil Court, Hyderabad, have been partly allowed, by modifying the said judgment and order of the trial court.
(2.) Facts and circumstances giving rise to these appeals are that: A. The appellant/plaintiff was carrying on business prior to 1.1.1978 in the appurtenant land as a tenant, and had made an offer to purchase the said premises, alongwith two other premises belonging to the landlady Ms. Anjum Jehan - respondent No.1/defendant No.1 (hereinafter referred to as 'Res.No.1'). B. The parties entered into an agreement dated 15.10.1977, for the sale of land admeasuring 1200 square yards situated at Musheerabad, Hyderabad, Andhra Pradesh, for a total consideration of Rs.1,70,070/-. Out of which a sum of Rs.25,000/- was paid as earnest money. The said agreement to sell, provided that the sale deed was to be executed within a period of six months from the date of agreement, or upon intimation by the vendor, as she had to obtain permission from the competent authority under Section 27 of the Urban Land Ceiling Act, 1976 (hereinafter referred to as 'the Act 1976), the necessary income tax clearances and the sub division permission from the municipal corporation. The aforesaid suit land was also in the possession of the landlady, and had partly been occupied by defendant no. 2/respondent (Narsoji). C. After the execution of the said agreement to sell, the appellant/plaintiff paid non-agricultural assessment tax. A legal notice dated 18.6.1979 was received by the appellant from Res. No.1 Ms. Anjum Jehan, stating that she had obtained requisite permission from the statutory authorities under the Act 1976, from the income tax authorities, and also from the sub-divisional authorities. D. The appellant/plaintiff asked Res. No.1 vide letter dated 2.7.1979, to send the copies of the aforesaid permissions, as well as a copy of the General Power of Attorney (hereinafter referred to as the 'GPA'), that had been executed by her. E. Instead of executing the sale-deed in favour of the appellant/plaintiff, Res. No.1 tried to sell the suit property to other persons. Therefore, the appellant/plaintiff got a public notice published in local newspapers on 29.4.1980 and 30.4.1980, in respect of the suit property, stating that an agreement to sell had been executed between the parties as regards the said land, and that therefore, no other person must purchase the same. F. Despite the said notice, the GPA holder of Res. No.1 entered into two different agreements to sell with respondent no. 2/defendant no.3 (K.S.R.Murthy) on 29/30.4.1980, for open land admeasuring 510 square yards. G. The appellant/plaintiff filed a suit bearing O.S. No. 30 of 1984 on 23.6.1983 for specific performance of the agreement to sell dated 15.10.1977, directing the Res. No.1 to execute a registered sale deed in favour of the appellant/plaintiff, and ignoring the agreement to sell in favour of respondent/defendant nos.3, 6 and 7. H. Respondent no.3/Defendant No. 7 (K.Y. Rajaiah) filed Original Suit No. 135 of 1984 on 27.12.1983, for perpetual injunction, restraining the appellant/plaintiff from interfering with the construction of a theatre building, including the compound wall of the same, which was in close proximity to his land. I. During the pendency of these two suits, Res.No.1 executed a sale deed, and she got the same registered on 29.4.1985, in favour of respondent no.2/defendant no.3 with respect to the part of the suit property admeasuring 260 square yards, and the recital of the sale deed acknowledged the agreement between the appellant/plaintiff and Res. No.1. J. The GPA holder registered another sale deed in favour of respondent no.2/defendant no. 3 on 30.4.1985, with respect to the suit property admeasuring 260 square yards. K. The trial court, vide judgment and decree dated 22.3.1991 decreed the suit of the appellant/plaintiff except for a small area admeasuring 65 square yards, which had been purchased by defendant no.6 (represented by Lrs. defendant nos.6 to 10), observing that the said defendant had no knowledge of any agreement to sell between the appellant/plaintiff and Res. No.1. The trial court also dismissed Suit No.135 of 1984 that had been filed by respondent no.3/defendant No.7 (K.Y. Rajaiah). L. The appellant/plaintiff was directed to deposit the balance consideration amount in the trial court within a period of four weeks, and the same was duly deposited by the appellant/plaintiff on 6.4.1991. M. Both sides preferred appeals before the High Court, and all the appeals were disposed of by a common judgment dated 10.6.2003, as referred to hereinabove. N. The High Court held, that the appellant/plaintiff was not ready and willing to perform his part of the contract, thus, in view of the same, there was no occasion to decide issues regarding whether the subsequent purchasers were in fact, bonafide purchasers for consideration without notice of the agreement to sell between the appellant/plaintiff and Res. No.1. However, the court further held, that the appellant/plaintiff would be entitled to get the sale deed executed in respect of the said land, excluding the land sold to defendant nos.3, 6 and 7 at the rate of Rs.750/- per square yard, adjusting the amount that had already been paid. O. Res.No.1 filed a Review Petition before the High Court. During the pendency of the said review petition, both the sides have preferred these appeals. The Review Petition filed by Res. No.1 stood dismissed vide order dated 20.2.2004. The said order is also under challenge before us in connected appeal Nos. 2888 and 4459 of 2005. Hence, these appeals.
(3.) Shri Anoop G. Chaudhari, learned senior counsel appearing on behalf of the appellant/plaintiff, has submitted that the High Court, while dealing with the first appeal, has decided the same under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'), giving strict adherence to Order XLI Rule 31 CPC, and thus that it ought to have dealt with each and every issue, and appreciate all the evidence on record. It was under an obligation to record findings on each issue separately. The High Court has committed an error in appreciating the evidence on record, and coming to the conclusion that the appellant/plaintiff was not ready and willing to perform his part of the contract, as the appellant/plaintiff had in fact been issuing public notices, with the intention of making other people aware of the fact that they must not indulge in any kind of transaction in respect of the suit property, as the same belonged to him. He also had the financial capacity to pay, which stood proved by the fact that within a period of three weeks from the date of judgment and decree of the High Court, he deposited the entire amount. Furthermore, the High Court ought to have appreciated the evidence on record, with respect to whether the other defendants/subsequent bonafide purchasers had purchased the land without notice. Merely saying that the same was not necessary, would mean that the court itself has violated the mandate of Order XLI Rule 31 CPC. Res.No.1 (Ms. Anjum Jehan) never appeared in the witness box and never filed a written statement. The same was filed by her GPA holder. The said GPA was in respect of various other properties, and the GPA holder was not authorised to pursue suits in respect of the suit property. Under no circumstance is the GPA holder competent to enter the witness box and to give evidence as a substitute for the original party. Thus, the appeals deserve to be allowed, and the judgment and decree of the High Court, is liable to be set aside.;