A. Ramanamma vs M. Ramakrishnaiah and Others

B.S. Raikote, J.—The original defendant No. 5 has preferred this appeal being aggrieved by the judgment and decree dt. 30-9-1988 passed by the Subordinate Judge at Tirupathi in A.S.No. 109/1981. By this impugned judgment and decree the appellate Court dismissed the appeal confirming the judgment and decree passed by the Principal District Munsiff at Tirupathi in O.S.No. 720/1978 dt. 23-9-1981.

Learned Counsel appearing for the appellant-defendant No. 5 contended that the impugned judgments and decrees of both the Courts below are contrary to the material evidence on record. He further submitted that the entire approach of the both the Courts below is illegal and the Courts below are in error in drawing adverse inference against the appellant for not producing the agreement of sale dt. 10-6-1974 executed by the defendant No. 1 in favour of the appellant. He further submitted that in view of a decree by a competent Court granting specific performance of the said agreement in O.S.No. 675/74 vide Ex.B-2 dt. 24-2-1975. the non-production of the said document will not have any consequence on the case of the appellant-Defendant No. 5. He further submitted that both the Courts below were in error in holding that the decree obtained by the appellant against Defendant No. 1 in O.S.No. 675/74 was a collusive decree without there being proper pleadings and evidence on record. He also submitted that the agreement of sale Ex.A-1 dt. 6-5-1974 relied upon by the present plaintiff in this suit is ante dated agreement in collusion with defendant No. 1. Therefore, the Courts below have erred in decreeing the plaintiff''s suit for specific performance, in view of the decree already passed in favour of the appellant in O.S. No. 675/74 vide Ex.B-2. On the basis of this decree the plaintiff has obtained a registered sale deed through Court vide Ex. B-3 dt. 15-10-1977 and the bailiff has also put him (sic. her) in possession on 22-6-1978 vide Ex.B-5. He further stated that the appellate Court has net considered the case of the appellant properly as a fact finding Court and therefore this appeal deserves to be allowed. On the other hand, Counsel appearing for the respondent-Plaintiff vehemently supported the judgment and decree of both the Courts below. He further submitted that the appellant has not produced the alleged agreement pleaded by him, and that agreement must have been fabricated document otherwise why the defendant No. 5 failed to produce in this case. He further submitted that the decree in Ex.B-2 relied upon by the appellant is a collusive decree as held by both the Courts below. At any rate the appellant had prior notice of the sale dt. 6-5-1974 Ex. A-1 in favour of the plaintiff executed by defendant Nos. 1 to 4 and the sale in favour of the appellant was subsequent to the sale in favour of the plaintiff. According to the case of the defendant No. 5, the sale in his (her) favour was on 10-6-74 executed by defendant No. 1. Therefore, he cannot derive any title on the basis of the alleged agreement dt. 10-6-1974. He also further stated that almost simultaneously both the suits in O.S.No. 675/74 and the present suit O.S.No. 842/74 were filed. By filing an application LA. No. 2987/74 the appellant got impleaded vide order of the Court below dt. 9-6-1975. As on the date of application in LA. No. 2987/74 for impleading, the suit filed by the appellant in O.S. No. 675/74 was at the stage of written statement. If that was so nothing prevented defendant No. 5 to get the plaintiff impleaded and without impleading the plaintiff he has taken an ex parte decree against defendant No. 1 and such a decree is collusive. The collusive nature of the decree would be further explict from the fact that defendant No. 1 has parted with the title deed in favour of the defendant No. 5 on the basis of the alleged agreement of sale only and in fact the title deeds are given to the vendee only at the time of sale deed. At any rate both the Courts have concurrently held that the plaintiff has proved the agreement of sale Ex.A-1 and consequently decreed .the suit. He further submitted that the appellate Court directed defendant No. 5 also to sign the sale deed in favour of the plaintiff cannot be said to be improper since defendant No. 5 himself claimed interest in the property and the appellate Court has power to pass proper and effective decree and therefore even this part of the argument of the appellant''s Counsel is not tenable.

Having regard to the contentions raised on behalf of both the sides, I have to see whether the appeal raises any substantial question of law for interference u/s 100, Code of Civil Procedure. In this suit the plaintiff in order to prove the agreement of sale dt. 6-5-1974 executed by defendant No. 1, examined himself as P.W.I and he also examined P.W.2 who is the attestor of the document and P.W.3 scribe of Ex.A-1. All these witnesses have consistently spoken to the fact that defendant Nos. 1 to 4 executed Ex.A-1 in favour of the plaintiff on 6-5-1974 after receiving a consideration of Rs. 2,000 out of the total consideration of Rs. 5,000/-. They have also spoken to the effect that the plaintiff was put in possession by defendants 1 to 4 on the basis of Ex.A-1.Both the Courts below have accepted the evidence of P.Ws. 1 to 4 and consequently held that Ex.A-1 is proved and possession was also delivered to the plaintiff on 6-5-1974. According to the case of appellant, defendant No. 1 alone executed the agreement of sale in her favour on 10-6-1974 for a consideration of Rs. 3,000/- and the appellant paid Rs. 1,000/- at the time of the agreement to the defendant No. 1, and the appellant was also put in possession on 10-6-1974 by the defendant No. 1, but the appellant did not produce the alleged agreement of sale dt. 10-6-1974 whereas he produced Ex.B-2 the decree which she obtained against defendant No. 1 in O.S. No. 675/74 dt. 24-2-1975. She also produced the registered sale deed executed by the Court on the basis of the decree vide Ex.B-3 dt. 15-10-1977, and also the possession receipt dt. 22-6-1978 vide Ex.B-5. On the basis of this material defendant No. 5 contended that there is an agreement of sale in her favour and she has been put in possession of the same. Defendant No. 5 examined herself as D.W.I and she also examined D.W.2 M. Laxmaiah who stated that defendant No. 5 purchased the land under agreement of sale by paying a part of the sale consideration of Rs. 1,000/- on the date of the agreement of sale, out of the total consideration of Rs. 3,000/- agreed to, and accordingly defendant No. 1 delivered possession. He stated that he had no knowledge whether defendant No. 1 had executed agreement of sale in favour of plaintiff prior to the alleged agreement of sale in favour of defendant No. 5. He admitted in his evidence that he is the paternal uncle of defendant No. 5. D.W.3 A. Chinnaiah also deposed to the same effect regarding the agreement of sale and receiving a part of the sale consideration as advance out of the total consideration of Rs. 3,000/- and putting defendant No. 5 in possession. He further stated that defendant No. 5 (sic. 1) failed to execute a sale deed and therefore defendant No. 5 had filed O.S.No. 675/74 for specific performance of the contract and ultimately the Court executed the sale deed in her favour. In cross-examination he admitted that P.W.I is the son-in-law. He also further admitted that his wife and defendant No. 5 are sisters. The last witness for defendant No. 5 was D.W. 4 - V.V. Subbaiah deposed that the suit land originally belonged to one M. Ramana and he sold the same to defendant No. 1 under sale deed Ex.B-1 and thereafter defendant No. 1 executed an agreement of sale in favour of defendant No. 5. He stated that he was the scribe of Ex.B-1. He further stated that defendant No. 5 was paying cist (land revenue). He admitted that the cultivation accounts are not in the name of defendant No. 5. He stated that defendants 2 to 4 informed him about the prior agreement in favour of defendant No. 5 Regarding the possession of the suit land this witness could not say as to who was in possession of the suit land. Both the Courts below disbelieved the evidence of D.Ws. 1 to 4 on the basis of certain inconsistency noted between the evidence of D.W.I and other witnesses. They also held that D.W.2 is the paternal uncle of defendant No. 5 and the wife of D.W.3 and (the wife of) defendant No. 5 were sisters. Both the Courts below disbelieved their evidence as being the interested witnesses. The Court below also rejected the evidence of D.W.4 when he said that defendant No. 5 was paying the cist. But defendant No. 5 herself admitted in her evidence that she was not paying cist regarding the suit land. Even according to the evidence of D.W.4 the cultivating accounts were not standing in the name of defendant No. 5 and defendant No. 4 (sic. D.W.4) could not say who was in possession of the property. Having assessed the entire evidence both the Courts disbelieved the evidence on the side of defendant No. 5 and decreed the plaintiff''s suit by believing the evidence on the side of plaintiff. Both the Courts have also held that the alleged agreement of sale pleaded by defendant No. 5 has been obtained by defendant No. 5 collusively, subsequent to the agreement of sale in favour of plaintiff. They have also held that even the alleged ex parte decree under Ex.B-2 is a collusive decree between defendant No. 5 and defendant No. 1. The Court below also held that absolutely there is no explanation on the part of the appellant for not producing the alleged agreement of sale dt. 10-6-1974, and that there is doubt about its existence. They took note of these circumstances and held that the decree under Ex.B-2 pleaded by defendant No. 5 is a collusive decree. The alleged agreement of sale is dt. 10-6-1974 and according to the case of defendant No. 5 time is the essence of the contract and three months was stipulated in the agreement for paying the balance amount and for getting (sale deed) executed. A notice was issued by the defendant No. 5 vide Ex.B-4 dt. 20-7-1974 to defendant No. 1, but by that time three months time stipulated in the earlier agreement had not even expired. The agreement, according to defendant No. 5 is 10-6-1974 whereas the notice was issued on 20-7-1974 only after about one month and ten days. Immediately thereafter the suit was filed within four days against defendant No. 1 alone. Defendant No. 1 though engaged a Counsel did not file any written statement and consequently an ex parte decree was passed on 24-2-1975 and thereafter E.P.No. 33/1976 was filed. Defendant No. 5 has taken the registered sale deed through Court on 15-10-1977 vide Ex.B-3 and also possession of the land through bailiff on 22-6-1978 vide Ex.B-5. It is to be noted at this stage itself that the present suit is filed by the plaintiff, after six or seven days of the suit filed by D-5. It is the case of the defendant No. 5 that herself had filed an implead petition in the suit filed by the plaintiff in this case O.S.No. 842/74. As per the affidavit filed in support of that LA. No. 2987/74 in O.S.No. 842/74, it is clear that the suit filed by defendant No. 5 in O.S.No. 675/1974 was only for filing of written statement and the counter. If that is so, nothing prevented defendant No. 5 to implead the present plaintiff in that suit filed by her in O.S.No. 675 /1974 instead of taking an ex parte decree against defendant No. 1. Defendant No. 1 by that time would naturally have no interest in view of the agreement of sale already executed in favour of the plaintiff. When she filed an implead petition to get herself impleaded as a party to the proceedings in this suit, at least at that point of time, she has come to know that defendant No. 1 had already executed the agreement of sale in favour of the plaintiff and the plaintiff could be very much interested in the subject matter. Keeping all these facts in view, the Courts below held that the decree obtained by defendant No. 5 in O.S.No. 675/1974 vide Ex.B-2 is a collusive decree. If defendant No. 5 was put in possession of the suit land on 10-6-1974 on the date of the alleged agreement of sale, there was no necessity for her to obtain possession through bailiff of the Court vide Ex.B-5 on 22-6-1978. On the basis of this material on record the Court below held that the case of the defendant No. 5 that there was an agreement of sale in her favour on 10-6-1974 and she was put in possession on that date was false. Though there appears to be some mistake in the observation of the Courts below that defendant No. 5 as D.W.I had admitted the possession of the plaintiff but on the assessment of the entire evidence, I find that the concurrent finding of fact recorded by both the Courts below is quite proper. For the reasons best known to her defendant No. 5 herself did not produce the alleged agreement of sale in her favour and the Court below has rightly drawn adverse inference against her.

Learned Counsel for the appellant contended that the trial Court directed defendants 1 to 5 (sic.4) to execute the sale deed in favour of the plaintiff whereas the appellate Court joined defendant No. 5 for execution of the sale deed in pursuance of the agreement of sale pleaded by the plaintiff. He further stated that there was no cross-objections by the plaintiff and as such a decree could not have been passed. On the other hand, learned Counsel for the respondent-plaintiff contended that, at any rate the agreement of sale pleaded by the defendant No. 5 as on 10-6-1974 is subsequent to the agreement of sale in favour of the plaintiff vide Ex.A-1 dt. 6-5-1974 and therefore the defendant No. 5 being a subsequent purchaser, the Court has power to direct her also to join the sale deed. In support of his contention he relied on judgments of the High Courts of Bombay and Patna in Ambalal Kesherbhai v. Ranchhoobhai Jerbhai and in the case of Parmeshwar Mandal v. Mahendra Nath Tewari. I have gone through these two judgments. Both the High Courts i.e., High Court of Bombay and High Court of Patna have interpreted the power of the appellate Court in passing such a decree under Order 41 Rule 33 C.P.C. In order to appreciate the law laid down in these two judgments I think it appropriate to extract Order 41 Rule 33 C.P.C, which reads as under;

"Power of Court of appeal:- The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objections and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

Provided that the appellate Court shall not make any order u/s 35-A pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

From a reading of the above, I find that the appellate Court has the power to pass any decree or an order which ought to have been passed by the Court below, notwithstanding that appeal is regarding a part of the decree. It is also further provided that the appellate Court may also exercise such power in respect of all parties although such parties have not have preferred any objections. Having regard to these circumstances, I am in agreement with the judgments of both the High Courts i.e., High Court of Bombay and High Court of Patna referred to above.

In this view of the matter, I do not find any infirmity in the judgment and decree passed by the appellate Court directing the defendant No. 5 to join with defendant Nos. 1 to 4, in executing sale deed in favour of plaintiff. Defendant No. 5 herself got impleaded to the present suit. The trial Court ought to have passed the decree even against her also since the alleged agreement of sale was subsequent to the agreement of sale in favour of the plaintiff. Therefore, I do not find that there is any illegality in the judgment and decree of the appellate Court.

For the above reasons the concurrent finding recorded by both the Courts below do not call for any interference u/s 100 C.P.C. Accordingly, I pass the order as under :

The Second Appeal is dismissed, but in the circumstances, without costs.