- (1.)The 1st defendant in O.S. No.268/84 on the file of District Munsif, Vizianagaram, being aggrieved of the Decree and Judgment made in A.S. No.117/95 on the file of District Judge, Vizianagaram, wherein the Decree and Judgment of the Court of first instance had been reversed, had preferred the present second appeal.
(2.)The appellant-1st defendant died during the pendency of the second appeal and appellants 2 to 12 were brought on record as the legal representatives of the deceased 1st appellant by Order dated 3-11-2005 in C.M.P. No.2745/2005. The second appeal as against R.5, R.6 and R.7 was dismissed for default. But, however, it is stated that the main contest is between R.1 to R.4 - the plaintiffs in O.S. No.268/84 and at present the legal representatives of appellant-1st defendant. It is also stated that these parties claiming under the 1st defendant as tenants had been shown as defendants 2, 3 and 4 and hence, the Counsel on record submitted that the second appeal to be heard on merits.
(3.)Contentions of Sri M. Adinarayana Raju :Sri Adinarayana Raju, the learned Counsel representing the legal representatives of the 1st appellant-appellants 2 to 12 had taken this Court through the respective pleadings of the parties and the evidence available on record and also the findings which had been recorded by the Court of first instance and the findings recorded by the appellate Court and would submit that it is a clear case of the benefits of Section 53-A of the Transfer of Property Act, 1882, being available to the appellant- 1st defendant and the Court of first instance recorded proper findings which had been reversed by the appellate Court on unsustainable grounds. The learned Counsel also would submit that even if by the date of putting forth such defence under Section 53-A of the Transfer of Property Act, 1882 the defendants could not have filed a suit for specific performance and even if such claim is otherwise barred by limitation, it would not seriously alter the situation as far as the applicability of the doctrine of part performance is concerned. The learned Counsel also would submit that in the peculiar facts and circumstances, the finding recorded by the appellate Court that the 1st defendant was not ready and willing to perform his part of the contract is an unsustainable finding and the fact that the father of the plaintiffs and the 1st defendant were close friends and in view of the position in which the father of the plaintiffs had been placed at the relevant point of. time, the 1st defendant could not insist upon the execution of the sale deed as such, these aspects should have been taken note of by the appellate Court while appreciating the applicability or otherwise of the doctrine of part performance to a case of this nature. The learned Counsel also pointed out to several of the admissions made by P.W.1 and would contend that except the evidence of P.W.I, there is no other evidence available on record whereas apart from the evidence of D.W.I, the other evidence D.W.2, D.W.3 and D.W.4 also is available on record. The learned Counsel also hadi taken this Court through the contents of Ex.B.8 and further pointed out to Exs.B.1 to Ex.B.7 also and would maintain that the property tax receipts definitely would go to show that to the knowledge of the plaintiffs, the 1st defendant had been in possession and enjoyment of the property for sufficiently a long time and hence decreeing the suit for recovery of possession at this stage would cause serious prejudice to the legal representatives of the appellant-1st defendant who are in possession of the property in question in pursuance of the agreement of sale. The learned Counsel also had pointed out to Ex.A.1 and Ex.A.2 and further would maintain that the averments in the plaint and also the evidence of P.W.1 would clearly go to show that P.W.1 did not approach the Court with clean hands but suppressed all the facts and had pleaded a loan transaction and the appellate Court having disbelieved the said stand and having arrived at a conclusion that there was an agreement of sale in between the father of the plaintiffs and the 1st defendant instead of giving the benefit under Section 53-A of the Transfer of Property Act,1882, decreed the suit as prayed for by the plaintiffs and the same cannot be sustained. The Counsel also pointed out that in fact the suit was instituted after a long lapse of time, at any rate, beyond 12 years and hence both in law and also on the ground of equity, the reliefs prayed for to be negatived to respondents 1 to 4 in the appeal-plaintiffs in the suit. The Counsel also placed strong reliance on certain decisions to substantiate his submissions.