Subba Rao, J. -
(1.)THIS is a Plaintiff's appeal against the decree and judgment of the Court of the Subordinate Judge of Bapatla in O.S. No. 66 of 1949, a suit filed by the Appellants for specific performance of a contract, dated 4th December 1947, executed by the 1st Defendant in favour of the 1st Plaintiff.
(2.)THE undisputed facts may be briefly stated. The plaint schedule property is of the extent of 6 acres. This land along with Ors. was originally owned by Upadrashta family. Upadrashta Ramayya's wile Vcenkata Lakshmamma and Upadrashta Venkatarama Sastri executed a mortgage in respect of 60 acres, including the suit land, in favour of the 2nd Defendant under Ex. B -7, dated 26th March 1928. The mortgagors from time to time sold away the properties to third parties and a balance of 11 acres remained in Venkatarama Sastri's hands in the year 1939. In execution of a decree against Venkatarama Sastri obtained by the 1st Defendant in O. S. No. 213 of 1930, he attached the said extent of 11 acres and brought them to sale. Even those 11 acres were nominally sold in the name of Venkatarama Sastri's wife and daughter. They filed claim petitions and they were dismissed.
When they filed suits to set aside the claim orders, they were also dismissed, for default. The said extent was purchased in Court sale in the name of Garikapati Raghavayya. Exhibit B -1, dated 7th December 1942, is the sale certificate. Under Ex. B -2, dated 29th October 1945, Garikapati Raghavayya sold the plaint schedule property to the 1st Defendant for a sum of Rs. 2,445. The sale -deed contains a recital that the vendor would be liable for any loss that might be sustained by the vendee, if any defect was noticed in the title of Venkatarama Sastri, or if any decision was passed at a future date that any alienations effected by him prior to the attachment would be binding on the auction purchaser. Raghavayya also sold 1 acre and odd out of the 11 acres purchased by him in Court sale under Ex. A -4, dated 24th June 1944, to Upadrashta Venkayya and Ors. On the same date, the mortgagee executed, Ex. A -12 in favour of the purchasers releasing the, said extent from the mortgage. It is recited therein that, as regards the amount due to him under the mortgage deed, he shall recover the same from the property other than the property released thereunder. Exhibit A -4 was attested by the 1st Defendant. Venkatarama Sastri also filed affidavits in the claim suits to the effect that the mortgage was subsisting.
It is in evidence, though there is no positive proof, that Venkatarama Sastri also filed contradictory statements stating in some other connection that the mortgage was discharged. On 4th December 1917, the 1st Defendant executed the contract of sale Ex. , A -1, in favour of the 1st Plaintiff, agreeing to sell the plaint schedule extent of 6 acres for a sum of Rs. 11,400. Exhibit A -1 recites that Rs. 1,500 was paid to the 1st Defendant as an advance on the dale of Ex. A -1 and the property was put in possession of the 1st Plaintiff. It also contains a statement that, if; in respect of the said property any dispute arises from anyone, the vendor shall settle it at his own expense. The balance of the amount was agreed to be paid within a month of the contract and in default it would carry interest at the rate of Re. 0 -8 -4 per cent, per mensem. Exhibit A -1 was written by D.W. 2 and attested by P.W. 4. The endorsement on Ex. A -1 shows that, on 14th January 1948, the 1st Plaintiff paid a sum of Rs. 2,000 and, on 2nd February 1948, a sum of Rs. 1,000 to Veerayya towards the consideration amount.
From 2nd February 1948, till 16th September 1948, there is no documentary evidence to show any progress in the matter of the implementation of the contract. On 16th September 1948, the 1st Plaintiff entered into a contract of sale Ex. A -14 in favour of the 2nd Plaintiff agreeing to sell the plaint schedule property to him. On 3rd October 1948, the 1st Defendant gave a wire to 1st Plaintiff informing him that, if the balance of the amount was not paid on or before 4th October 1918, he would file a suit for specific performance. On 13th October 1948, the 1st Plaintiff issued a notice Ex. A -2 to the 1st Defendant. Therein, he asked the 1st Defendant to show him the documents of title and also vouchers to prove that the mortgage was discharged.
The 1st Defendant was also informed that the 1st Plaintiff was ready and willing to perform his part of the contract and that, if, within 15 days of, the receipt of the notice the 1st Defendant did not show the 1st Plaintiff the documents of title and the vouchers showing the discharge of the mortgage, he would not be liable to pay interest from that date. On 22nd October 1948, the 1st Defendant sent a reply to the 1st Plaintiff wherein he called upon him to fulfil the agreement within a week by paying the balance of the purchase money and takes a conveyance and intimating that otherwise the contract would stand rescinded. On 10th November 1948, the 1st Defendant issued a notice Ex. B -5 to the 1st Plaintiff wherein he reminded him of the previous letter and informed him that, as he did not comply with the requirements of the notice within the time given, the agreement became cancelled.
Exhibit A -3, dated 24th November 1948, is the reply notice issued by the 1st Plaintiff to the 1st Defendant, wherein he again reiterated his complaint against the conduct of the 1st Defendant. He pointed out that the 1st Defendant failed to show the sale certificate and also the vouchers to show that the mortgage was discharged. He also informed him that the balance of the consideration of Rs. 7,290 -7 -6 had been deposited in the Guntur District Central Bank, he called upon him to execute a sale -deed and receive the money. Exhibit A -13, dated 24th November 1948, is the receipt for Rs. 7,290 -7 -6 given by the District Co -operative Bank, Tenali, to B. Ramamurthi on behalf of the 1st Plaintiff.
The 1st Defendant again issued a notice Ex. B -6, dated 26th December 1948, to the 1st Plaintiff, wherein he informed him that, on 4th December 1917, he agreed only to sell him the plaint schedule property without personal liability and without warranty of title and that, as the terms insisted on by the 1st Plaintiff, viz., to show title deeds and to prove that the encumbrances have been discharged were illegal, the agreement had become cancelled. The 1st and the 2nd Plaintiffs filed Section 66 of 1949 on the file of the Court of the Subordinate Judge for specific performance of the contract to sell.
(3.)THE 1st Defendant reiterated his defence to the - suit, which was disclosed in the notice issued by him. The 2nd Defendant mortgagee filed a written statement wherein he did not admit that the mortgage was discharged but he only pleaded that he was not a necessary party and that the amount due to him could not be ascertained in that suit.