Narra Madhava Rao vs B. Sadasiva Rao and Others

P.S. Narayana, J.—This Appeal is filed as against the Decree and Judgment made in O.S. No. 915/81 on the file of III Additional Judge, City Civil Court, Secunderabad. The said suit was filed for the relief of specific performance of the contract.

The 1st defendant died and defendants 2 to 6 were added as legal representatives as per orders in I.A. No. 434/90 dt.28-6-1990. The respondents 7 to 11 were impleaded in the appeal by virtue of an order dated 18-11-2003 in C.M.P. No. 26072/2003. Defendants 5 and 6 are shown as respondents 5 and 6 in the present Appeal and the Appeal was dismissed for default as against respondents 5 and 6 by order dated 31-12-2001.

Contentions of Sri K.R.Narasimham: Sri K.R.Narasimham, the learned Counsel representing the appellant had taken this Court through the respective pleadings of the parties, the evidence available on record and the findings recorded by the trial Court and had taken this Court in elaboration through the contents of Exs.A-1 to A-5 and also had taken through the evidence of two senior advocates and further contended that Sri M.Surya gupta, Advocate, had taken such stand only by being provoked by the nature of notice issued by Sri Anjaiah and in the light of the events, if the evidence to be carefully examined the evidence of Sri P.L.Gajapathi Rao and Sri M.Surya Gupta, it is clear that there was a concluded contract entered into, may be oral, and in the light of the clear evidence available on record, the learned Judge in stead of exercising the discretion of granting the relief of specific performance, erroneously negatived the said relief. The learned Counsel also pointed out to Exs.B-2, B-3 and B-4 and also the historical background of the litigation, prior series of litigations and how despite direction in stead of filing a suit for declaration of title and possession, a suit for possession simplicitor had been filed. The learned Counsel also pointed out to Section 53A of the Transfer of Property Act and Sections 18 and 19 of the Specific Relief Act. The Counsel also made elaborate submissions relating to the aspect of exclusive jurisdiction and the jurisdiction of a Civil Court to make an order of eviction or to execute a decree of the nature which had been made. The learned Counsel also pointed out that respondents 7 to 11 are purchasers pendente lite and they cannot be said to be bona fide purchasers since these purchasers had knowledge about the pending litigation. The learned Counsel also made certain submissions relating to the doctrine of non est factum. While further elaborating his submissions, the learned Counsel meticulously pointed out to the relevant portions of the evidence of PW-2 and DW-2 in particular and apart from this evidence, the evidence of PW-3 and PW-4 also had been heavily relied on and certain admissions made by DW-1 also had been pointed out. The learned Counsel also had taken this Court through the evidence of PW-1 as well and the other oral and documentary evidence available on record. The learned Counsel also pointed out to the relevant portions of the written arguments submitted on behalf of the appellant. The learned Counsel made elaborate submissions in relation to Ex.B-3. The learned Counsel further pointed out to Section 10 of A.P. Rent Control Act and Section 58(c) of Transfer of Property Act also. The learned Counsel made certain submissions relating to the principle of res judicata in the context of Section 11 of the CPC and Section 114 and 116 of the Indian Evidence Act and further would maintain that both in law and also on the ground of equity, the reliefs as prayed for by the appellant/plaintiff to be granted. The learned Counsel also relied upon several decisions to substantiate his submissions.

Contentions of Sri C.Bala Gopal: Sri C.Bala Gopal, the learned Counsel representing the contesting respondents initially made certain comments that it is unfortunate that unnecessary uncharitable remarks had been made against certain Advocates. Be that as it may, even if the evidence to be carefully examined, may be that certain attempts were made to have settlement, but at any rate it cannot be said to be a concluded contract on the strength of which enforcement thereof can be prayed for. At the best the suit is based on the strength of an oral agreement. Unless the evidence is so convincing, normally the relief of specific performance on the strength of an oral agreement not to be granted. The learned Counsel pointed out to the inconsistent pleas taken in the plaint itself and how those pleas are in deviation of the evidence which had been adduced on behalf of the plaintiff. The learned Counsel in particular had pointed out to para-4 of the plaint. Further, the learned Counsel had taken this Court through paras 5 and 6 of the plaint as well. The Counsel in elaboration had taken this Court through the contents of Ex.A-1 and also the contents of Ex.A-2. The Counsel pointed out to Exs.A-3 A-4 and A-5 as well. The learned Counsel pointed out to Exs.C-1, C-2, X-1 and X-2 and further pointed out to the findings recorded by the trial Court and also had pointed out to the evidence of DW-2 and further would maintain that it is really unfortunate that both PW-2 and DW-2 at present are not in this world. But however, in all fairness the learned Counsel would maintain that both these advocates Sri P.L.Gajapathi Rao and Sri M. Surya Gupta were senior members of the Bar and respectable persons. It is unfortunate that these were dragged into this unfortunate controversy. Even otherwise it is highly improbable that the story of the plaintiff be believed as it is and in the light of the exaggerations especially in the light of the careful appreciation of the whole evidence available on record and may be PW-3 and PW-4 are also respectables, in the light of certain inconsistencies, the trial Court was careful enough to consider all these aspects and exercised the discretion and refused the relief of specific performance and such well considered findings based on proper appreciation of evidence, unless perverse, normally not to be interfered with in an Appeal. The mere fact that the purchasers pendente lite at present are on record may not alter the situation. It may be that the doctrine of lis pendens may be applicable and such alienations made would be subject to the result of the Appeal. The learned Counsel also placed reliance on certain decisions.

Heard the Counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the trial Court.

On a careful analysis of the written submissions submitted on behalf of the appellant, several of the contentions already had been considered in the prior litigations and such matters already concluded cannot be reagitated again. Be that as it may, this Court also had carefully gone through the written submissions made by the appellant apart from the submissions made before this Court.

Before taking up further discussion, for the purpose of convenience, it may be appropriate to have a glance at the respective pleadings of the parties, the Issues settled and the evidence available on record, the findings recorded by the trial Court in nutshell as well.

Averments made in the (amended) plaint: The unsuccessful plaintiff is the present appellant. It was pleaded in the plaint that the plaintiff and his father late Narra Ganesh mortgaged by conditional sale of the house bearing No. 2486 (new No. 3-3-659), Rangrej Bazar, Secunderabad-3 on 29-8-1984 or a sum of Rs. 4,500/- (Osmania sicca) = Indian Government Rs. 3857-77. As was the practice prevailing then in the twin cities of Hyderabad and Secunderabad, the defendant agreed to reconvey the same whenever demanded and agreed to receive monthly Rs. 22.50 (O.S.) in lieu of interest. Subsequently, the monthly amount was increased to IG Rs. 34/-. The defendant filed the R.S. No. 376/67 in the Court of the Rent Controller, Secunderabad on the ground of willful default alleging the relationship of landlord and tenant between the defendant and the plaintiff. The said R.G. No. 376/67 as dismissed on 25-7-1968 stating that there was no relationship of tenancy between the plaintiff and the defendant. The defendant preferred Rent Appeal No. 538/68 and it was also dismissed. Even, C.R.P. No. 1753/70 was also dismissed at the admission stage itself directing the defendant to file a regular suit for declaration and possession. It was also further pleaded that the defendant in stead of filing a regular civil suit for declaration, title and possession as directed in C.R.P. No. 1753/70 wrongly filed O.S. No. 351/71 in the Court of the I Assistant Judge, City Civil Court, Secunderabad for recovery of possession and arrears purporting to be under provision to Section 10 Sub-clause (i) of A.P. Buildings (Lease, Rent & Eviction) Control Act 1960. The said suit was however decreed on 31-1-1974. The appeal A.S. No. 52/74 preferred by the plaintiff herein on the file of the Additional Chief Judge, City Civil Court, Secunderabad was dismissed on 18-11- 1975. The plaintiff herein also filed S.A. No. 781/75 in the High Court of Andhra Pradesh at Hyderabad which was also dismissed on 28-6-1977. SLP appeal was filed in the Supreme Court which was numbered as 3912/1977 was admitted and stay of execution of eviction was granted. However, the said Appeal was finally dismissed on 15-1-1980. It was further pleaded that on 16-7-1980 the defendant along with his mother Smt. Annamma filed E.P. No. 67/80 praying for delivery of possession of the suit premises under Order 21 Rule 35 of the CPC without notice to the plaintiff. A warrant of delivery of possession was given to the Bailiff of the Court of the I Assistant Judge, City Civil Court, Secunderabad on 22-7-1980 returnable by 2- 8-1980. On 30-7-1980 under panchanama of that date, the plaintiff was evicted and possession of the suit premises along with big Iron safe (Tijori) was entrusted to the defendant by the said Bailiff and two receipts were obtained from the defendant who endorsed full satisfaction of the said decree. On 1-8- 1980 the said bailiff submitted a report enclosing the said two receipts recording full satisfaction of the decree by the Decree Holder i.e., the defendant herein. On 2-8-1980 as the Presiding Judge i.e., I Assistant Judge was on leave, the delivery of full satisfaction of the decree could not be recorded in spite of the Bailiff''s report, panchanama and the said two reports filed in the Court of the I Asst. Judge, City Civil Court, Secunderabad and thus the E.P. stood adjourned to 9-9-1980. It was further pleaded that it is pertinent to mention that the defendant herein by concealing the fact of co- parcenary ownership of the plaintiff''s sons brought on 30-7-1980, an eviction warrant in E.P. No. 67/80 in O.S. No. 351/71 on the file of I Asst. Judge, City Civil Court, Secunderabad for evicting the plaintiff from H. No. 3-3-659, Rangrej Bazar, Secunderabad-3 (hereinafter called the "said house") along with the Bailiff and process server of Secunderabad Court sanse filing partition suit against the three sons of the plaintiff viz., N.Subodh Kumar, N.Vinod Kumar and N.Praveen Kumar inasmuch as the said sons of the plaintiff have legal and statutory right to continue to own and possess the said house. At that time, at the said house of the plaintiff gathered and assembled Sri P.L.Gajapathi Rao, Avocate, Sri Annam Manikya Rao, Gold & Silver merchant, Sri J.P.Nageshwar Rao, a Retired Deputy Director of Agriculture, A.P. Government, Sri C.Malleshar Rao, staff of State Bank of Hyderabad, Sri Marike Balraj, Gold & Silver merchant, Sri Maripalli Pandarinath, Gold & Silver merchant, Sri C.Rajeshwar Rao, Gold & Silver merchant, Sri B.L. Venkat Rao, a retired Railway Officer and Sri B.N. Pandurangam, Accountant, S.C. Railway, Secunderabad and before the said persons the plaintiff offered and agreed to pay the defendant a sum of Rs. 25,000/- in full and final settlement of the decree in E.P. No. 67/80 in O.S. No. 351/71 on the file of I Asst. Judge, City Civil Court, Secunderabad, subject to the condition that the defendant should execute reconveyance deed or sale deed in favour of the plaintiff herein. Of course, the defendant was reluctant to reconvey the said house to the plaintiff in the beginning for Rs. 25,000/-, but the defendant demanded a sum of Rs. 35,000/- at that time for getting the said house reconveyed in the name of the plaintiff. Accordingly the plaintiff agreed to pay the defendant a sum of Rs. 35,000/- as demanded by the defendant. It was also further pleaded that in the evening of the even day i.e., on 30-7-1980, the defendant became greedy and demanded a sum of Rs. 75,000/- from the plaintiff for reconveying the said house in favour of the plaintiff. Then Mr. Annam Manikya Rao advised the defendant that it was not possible for the plaintiff to pay a sum of Rs. 75,000/- as demanded by the defendant but the plaintiff could pay a sum of Rs. 40,000/- towards reconveyance sale of the said house. After consulting each other, the elderly persons stated supra advised the defendant to receive the sum of Rs. 50,000/- from the plaintiff for reconveying the said house in favour of the plaintiff. The plaintiff agreed for the said amount of Rs. 50,000/- and the defendant also agreed to receive the said amount in final and full settlement for reconveying the said house in favour of the plaintiff. In view of the said oral agreement-cum-promise arrived at on the advice of the aforementioned persons on 30-7-1980, the defendant left the Iron safe (Tijori) and the household archives and articles of the plaintiff belonging to the plaintiff in the said house. It was also further pleaded that on 31-7-1980, the aforementioned elderly persons approached Mr. M.Surya Gupta, Advocate, for informing him that his client, the defendant herein, agreed to receive Rs. 50,000/- for reconveying the said house to the plaintiff. Then Mr. M.Surya Gupta, Advocate asked Mr. Annam Manikya Rao to bring his client, the defendant herein on 1-8-1980 to his office. Accordingly on 1-8-1980 Mr. Annam Manikya Rao, Mr. C.malleshwar Rao and Mr. S.Subodh Kumar went to Advocate Mr. M.Surya Gupta and he wanted the defendant immediately to go to office. Then the defendant told Mr. Annam Manikya Rao to advice the plaintiff to arrange Rs. 50,000/- so that the defendant would reconvey the said house to the plaintiff. Mr. Annam Manikya Rao told the defendant that the plaintiff would pay Rs. 25,000/- as advance on 1-8- 1980 (Friday) and the balance Rs. 25,000/- would be paid at the time of execution and registration of the sale deed of the said house in favour of the plaintiff. Then the defendant agreed and went to the office of the defendant''s Advocate Mr. M.Surya Gupta who drafted the Agreement to sell before whom the defendant agreed to sell the said house to the plaintiff for Rs. 50,000/- out of which the defendant agreed to receive a sum of Rs. 35,000/- as advance and earnest money and the balance of Rs. 25,000/- at the time of execution and registration of the sale deed of the said house. All this happened in the presence of the following gold and silver merchants viz., Sri P.L.Gajapathi Rao, Advocate, Sri Annam Manikya Rao, Sri Karlke Balraj, Sri Maripally Krishna Murthy, Sri C.Rajeshwar Rao, Sri Maripally Pandarinath and Sri C.Malleshwar Rao, Staff of State Bank of Hyderabad, Sri Samma Rao, medical business man and Sri J.P. Nageshwara Rao, a retired Deputy Director of the A.P. Agriculture, in the office of the defendant''s Advocate Mr. M.Surya Gupta. Then a draft agreement of sale of the said house as prepared and got typed by Mr. M.Surya Gupta, Advocate, under the instructions of the defendant. By that time it was 9.30 p.m. Mr. Surya Gupta told the above mentioned elderly persons to be present on 2-8-1980 as it was getting late on 1-8-1980. On 2-8-1980 (Saturday) at about 7.00 p.m. Sri K.Balraj, Sri M.Pandarinath, Sri M.Krishna Murthy, Sri C.Rajeshwar Rao and Sri C.Malleshwar Rao went to the office of Mr. M.Surya Gupta, Advocate of the defendant herein with cash of Rs. 25,000/- but Mr. M.Surya Gupta was not available at that time on that day in his office. On 3-8-1980, at about 8.00 a.m. Sri Karike Balraj, Sri C.Malleshwar Rao, Sri M.Subodh Kumar, Sri N.Praveen Kumar and the plaintiff herein went the defendant''s house and told the defendant that the plaintiff had brought Rs. 25,000/- and asked the defendant to go to the defendant''s Advocate Mr. M.Surya Gupta, to enter into an agreement of sale pertaining to the said house. Then the defendant sent a word through his wife, sister and son to bring Rs. 50,000/- cash and if the plaintiff did not have money immediately, asked the plaintiff to sell the plaintiff''s General Bazar shop and pay the amount to the defendant forthwith. Then Mr. Karike Balraj told the wife, sister and son of the defendant that K.Balraj would pay Rs. 50,000/- on behalf of the plaintiff on 5-8-1980. Then the defendant and the members of his family promised that the defendant would not change his mind again and if he did so, the defendant said that his tongue should be cut off. It was also further pleaded that on 5-8-1980 Mr. karike Balraj along with Mr. Annam Manikya Rao went to the defendant with Rs. 50,000/-. Then the defendant told them to bring Mr. Linga Nagabushanam, partner of M/s. Ram Mohan Book Depot, Secunderabad and accordingly Mr. Lingam Nagabushanam was sent to the defendant. On 6-8-1980 (Wednesday) Mr. K.Balraj, Mr. Dubbiah and Mr. Samma Rao went to the defendant''s house with cash of Rs. 50,000/-. Then the defendant told them that the defendant would consult the defendant''s guru at Konga Raviryala village, behind Pahadi Sheriff, Shamshabad, Hyderabad. On 8-8-1980, the defendant along with Mr. Dubbaiah and Mr. Konda Sivaiah went to the place of the defendant''s guru who advised the defendant to act according to the promise and oral agreement-cum- promise made by the defendant in the presence of the aforementioned elders. It was further pleaded that on 10-8-1980 Mr. Annam Manikya Rao, Mr. Karike Balraj, the plaintiff herein Mr. C.Rajeshwar Rao, Mr. K.Narayana Swamy and Mr. G.Malleshwar Rao and others went to the defendant''s guru and told about all what had happened. Then the defendant''s guru advised the defendant to abide by his promise and if there is any difference between the plaintiff and the defendant, he further advised to have panchas from both the sides and get the matter settled. Since 11-8-1980 onwards, the defendant had been avoiding to show his face either to the plaintiff or to the aforementioned respectable business men and officers. From 11-8-1980 onwards every day the plaintiff and some of the said elders went to meet the defendant with cash of Rs. 50,000/- but the defendant had been avoiding to show his face and evading to receive the said amount of Rs. 50,000/- inasmuch as the plaintiff''s tenant Mr. Marripalli Pandari had been poisoning the defendant''s mind to force the defendant to sell the General Bazar shop to Maripalli Pandari, the tenant of the plaintiff. Ultimately on 25-8-1980 at about 8 a.m. Mr. Karike Balraj, Mr. Annam Manikya Rao, Mr. N.Pandarinath, the plaintiff herein Mr. Karre Narsimha, Mr. Mallaiah, Mr. Sambasivaiah etc., went to the defendant''s house and offered Rs. 50,000/- cash, but the defendant told them that the defendant would receive Rs. 50,000/- on the date of execution and registration of the reconveyance sale deed and asked Mr. Karike Balraj to keep the said amount of Rs. 50,000/- with him as the defendant told him that the defendant would receive the said amount from Mr. Karike Balraj at the sale deed pertaining the said house in favour of the plaintiff. In part performance of the said contract to reconvey or agreement of sale the said house, the plaintiff was restored back the possession on 25-8-1980 by the defendant in the immediate presence of Sri Karike Balraj and others. Unfortunately on 9-9-1980 the defendant filed E.A. No. 115/80 in E.P. No. 67/80 on the file of I Asst. Judge, City Civil Court, Secunderabad wrongly and strangely and mischievously a petition behind the back of the plaintiff, praying for reissue of the warrant to take back the possession of the said house from the plaintiff which the defendant had earlier delivered to the plaintiff on 25-8-1980 falsely stating that the plaintiff had trespassed by breaking open the locks and reentered the said house. It was gathered that the said petition was deliberately filed by the defendant at the ill-advise of Mr. Surya Gupta, Advocate, after receiving on 3-9-1980 the plaintiff''s lawyer''s notice dated 26-8-1980 and the said notice was not even replied as on 9-9-1980, the date of filing of the petition for reissue of the Eviction warrant against the plaintiff. The plaintiff through his Advocate Sri G.M.Anjaiah sent a letter dated 10-9-1980 calling upon Sri M.Surya Gupta to kindly make available the draft agreement of sale prepared and got typed in the presence of the above elders in respect of the agreement to reconvey the suit house in favour of the plaintiff. The delayed reply with false allegations was given on 20-9-1980 by Mr. Surya Gupta, Advocate to the said notice of the plaintiff dated 26-8-1980 while the defendant replied on 22-11-1980 with false allegations. It was also further pleaded that a counter affidavit dated 23-12-1980 was filed on behalf of the plaintiff taking preliminary objection that the said application praying for reissue of warrant was not maintainable under law in view of the aforesaid settlement and restoration of possession in part performance of the agreement entered into between the parties and also suggesting that Sri M.Surya Gupta who took active part in the settlement was not within his rights to continue to act as the Counsel of the defendant who suppressed the true facts infradigging his profession. However, the said Mr. Surya Gupta retired from the case, E.A. No. 115/80 in E.P. No. l67/80 i.e., reissue of warrant of eviction proceedings. The said Advocate Mr. M.Surya Gupta who was forced to retire, drafted a reply purporting to that of the defendant wherein he had emitted venom and tried to resile from the settlement that had already taken place. A reply affidavit was filed by the defendant dated 6-12-1980 wherein a lot of complicated points of facts and law had been deliberately put into buttress the false demand for reissue of the warrant on an alleged trespass, false in his own knowledge. It was also further pleaded that on 25-1-1981, the defendant through his new Advocate Sri R.Madhusudan Rao raised a plea orally that the oral evidence need not be taken although he found that all the respectable elders, advocates, bullion merchants, general merchants and the officers who were all duly served and summoned were present in person in the Court to give evidence. The Advocate of the plaintiff drew attention of the I Asst. Judge, City Civil Court, Secunderabad that under Rule 150 of the Civil Rules of Practice, enquiry in pending E.Ps. viz., the execution applications, Rules 29 to 32 and 145 supra shall apply to all the applications by a party to the suit or matter made in or with respect to a pending execution petition. It was also specifically brought to the notice of the learned Judge that Rule 33 of the Civil Rules of Practice provided for Affidavit evidence. Thereupon, a docket order was passed person 20-1-1981 in E.A. No. 115/80 in E.P. No. 67/80 in O.S. No. 351/72 by the Hon''ble I Asst. Judge, City Civil Court, Secunderabad permitting oral evidence being led in the matter. The defendant thereupon filed C.R.P. No. 838/81 in E.P. No. 67/80 in O.S. No. 357/71 on the file of I Asst. Judge and deliberately twisted the facts and misrepresented the matters in the High Court making it appear that the docket order dated 20-1-1981 in E.A. No. 115/80 in E.P. No. 67/80 acknowledged the scope of enquiry and permitted specific performance of the oral agreement of sale for Rs. 50,000/- which was beyond the jurisdiction of the I Asst. Judge and that too without payment of Court fee and the claim of the plaintiff itself was not germane to the question of reissue of the warrant. The Revision was, however, allowed without costs directing the executing Court only to address or limit itself to the point whether fresh warrant of eviction could be issued in the circumstances stated in the affidavit and, if found maintainable to order eviction. The High Court also directed that in view of the defence taken by the plaintiff about the settlement and agreement of sale nothing prevents the plaintiff from filing a suit for specific performance and obtaining orders of injunction from a competent Court in e meanwhile. The High Court was inclined to do in view of the omission of Sub-section (2) of Section 47 which permitted the executing Court to convert an application u/s 47 as a suit subject to jurisdiction and Limitation if complicated questions of law or fact arise with respect to the questions relating to accord, discharge and satisfaction of a decree. The said reservation had been incorporated in the order dated 14-8-1981 allowing the C.R.P. No. 838/81 wherein the learned High Court Judge specifically said that he should not be understood as expressing any adverse opinion against the plaintiff herein with regard to the plea of oral agreement of sale and in prosecuting his remedies for specific performance in a competent Court and obtaining the injunction in the meanwhile. The said petition was remitted back for consideration before the executing Court I Asst. Judge, City Civil Court, Secunderabad on the preliminary point whether a fresh warrant could be issued ? It was also further pleaded that the plaintiff took possession on 25-8-1980 in furtherance and in part performance of the concluded agreement of sale entered into between the plaintiff and the defendant in the presence of the plaintiff and the respectable aforementioned persons. Since Sri M.Surya Gupta, the Advocate, witness who prepared the agreement of sale, took advantage of the same kept with him. The plaintiff relied on the eviction proceedings in E.A. No. 115/80 in E.P. No. 67/80 by filing the suit for specific performance of the oral agreement of sale already concluded between the parties. It was also further pleaded that the defendant is threatening to evict the plaintiff from the suit house taking advantage of the fact that delivery order had not been recorded by the I Asst. Judge, City Civil Court, Secunderabad on 2-8-1980, the date of return of the warrant as the presiding Judge was on leave in the Court of the I Asst. Judge, City Civil Court, Secunderabad. It was also pleaded that the process of recording delivery is only a ministerial act and for want of the same it does not make the warrant liable to be reissued once it was issued and executed. To avoid any possible tendency of the plaintiff being dispossessed before a decree for specific performance could be passed, the plaintiff prayed for a consequential injunction restraining the defendant from dispossessing the plaintiff from the said premises when possession had been restored back in furtherance and in part performance of the agreement of sale.

Averments made in the written statement : In the written statement filed by the defendant it was denied that the plaintiff and his father mortgaged by conditional sale of the house on 29-8-1943 (new No. 3-3-659) for a sum of Rs. 4500/-, as absolutely false. It was further pleaded that the plaintiff and his father did not mortgage the house but actually sold the house for a sum of Rs. 4500/-. The defendant further denied that he agreed to reconvey the house as per the alleged practice or that there was any practice prevailing in the twin cities of Hyderabad and Secunderabad. The defendant also denied that he agreed to receive monthly Rs. 22.50 in lieu of interest or that subsequently the monthly amount was increased. It was pleaded that originally the plaintiff and his father sold two houses to one Thigulla Babaiah under a sale deed dated 9-5-1938. The said sale to Thigulla Babaiah was subject to an agreement of reconveyance. Being unable to procure the money for reconveyance, the plaintiff and his father sold one of the houses to the defendant''s father Bejugam Laxmaiah by way of absolute sale and executed a sale deed dated 19-8-1943. Thigulla Babaiah also joined the plaintiff and his father as a vendor in executing the sale deed in favour of the defendant''s father. Actually two houses were sold to Thigulla Babaiah for Rs. 3500/- and Rs. 4500/- but only one house namely H. No. 2486 (new No. 3-3-650 and 659), Rangrez Bazar, Secunderabad was sold to the defendant''s father for the sale price of Rs. 4500/-. The plaintiff and his father were then in possession of the house. They also executed a rental agreement in favour of the defendant''s father agreeing to pay a rent of H.S.Rs.22.50 to his father. These facts had been deliberately omitted by them in the plaint. The defendant admitted that he filed R.C. No. 376/1967 in the Court of the Rent Controller, Secunderabad on the ground of willful default in payment of rent and stating the relationship of landlord and tenant between the plaintiff and the defendant. The defendant also admitted that R.C. No. 367/67 was dismissed on 25-7-1968 on the ground that the defendant is not the landlord of the plaintiff. The defendant also admitted that the rent appeal R.A. No. 538/68 preferred by the defendant was also dismissed with the observation that it is always open to the defendant to establish his title in a Civil Court. It was further pleaded that the allegations that the plaintiff and his father mortgaged premises bearing No. 2486 to the defendant or that the defendant agreed to reconvey the house are therefore palpably false. The C.R.P. was dismissed with the observation that it is always open to the defendant to establish his title in a Civil Court. There was no direction in the C.R.P. directing the defendant to file a suit for declaration and possession. The said allegation is absolutely false. The defendant also denied that he violated any directions of the Hon''ble High Court in filing the suit for possession and arrears of rent. The very facts that the suit was decreed on 1-1-1974, that the Second Appeal filed by the plaintiff was also dismissed, that the Supreme Court also finally dismissed the Special Appeal on 15-1-1980 as narrated by the plaintiff, clearly show that no direction was given by the Hon''ble High Court. The plaintiff filed the Appeals mentioned above only to gain time and protract the litigation so that he may remain in illegal occupation of the suit premises, without any right for several years which in fact, he did. It was further pleaded that the allegation in para-IV that the defendant and his mother filed the execution petition without notice to the plaintiff is misleading and it was stated that no notice was necessary to be given to the plaintiff. The defendant admitted that a warrant as issued to the plaintiff on 22-7-1980 but the rest of the allegations in the said para had been denied as the same being misleading and distorting the true facts. It was further denied that the defendant endorsed full satisfaction of the decree in the receipts issued to the bailiff. The bailiff obtained one receipt to the effect that the defendant received vacant possession of the suit premises and another receipt wherein it was mentioned that the defendant received one Thijori in the presence of police as witnesses and that the defendant shall produce the Thijori whenever called as per Court rules. The defendant also denied that the bailiff submitted the report enclosing two receipts recording full satisfaction of the decree by the Decree Holder as alleged and that there was no question of the defendant having recorded full satisfaction of the decree in the receipts. It was further pleaded that it is the Hon''ble Court which has to record full satisfaction of the decree. The defendant admitted that the execution petition was adjourned to 9th September 1980 because the Presiding Officer was on leave. In reply to para-V of the plaint, the defendant denied that there is any co-parcenary ownership of the plaintiff''s sons as alleged or that the defendant concealed any fact from the Court or that the defendant brought the Bailiff and the Process Server of Secunderabad Court sans filing partition suit against the three sons of the plaintiff as alleged. The said sentence conveys no meaning at all. The defendant denied that the sons of the plaintiff have any right either legal or statutory to own or possess the suit premises. It was further denied that at that time the persons mentioned therein either gathered or assembled at the suit premises. The defendant emphatically denied that the plaintiff either offered or agreed to pay the defendant Rs. 25,000/- or that he did so before the said persons or that he did so in full settlement of the decree in E.P. No. 67/80 in O.S. No. 351/71 on the file of the I Asst. Judge, City Civil Court, Secunderabad, or that it stipulated any condition that the defendant should execute a sale deed or reconveyance deed in plaintiff''s favour. It was pleaded that there was no such offer from the plaintiff and there was no question of offering any amount in full settlement of the decree as the decree was not for money and as the warrant as issued for eviction of the plaintiff and not for money. The defendant denied that he was reluctant to reconvey the suit house in the beginning as alleged or at any time. The defendant further denied that he demanded a sum of Rs. 35,000/- or any other sum or that he demanded any sum for reconveyancing the suit house. The defendant further denied that he demanded any money. The defendant emphatically denied that the plaintiff agreed to pay Rs. 35,000/- or any other sum. It was pleaded that no such dialogue took place between the plaintiff and the defendant. The defendant denied that in the evening of 30th July 1980, he became greedy or that he demanded a sum of Rs. 35,000/- or any other sum from the plaintiff or that he demanded any sum for reconveyancing the suit house in favour of the plaintiff. It was further pleaded that the defendant never agreed to reconvey the suit house. The defendant denied that Sri Annam Manikya Rao or any other person advised the defendant that it was not possible for the plaintiff to pay the said sum. It was further denied that the defendant demanded the said sum or that Annam Manikya Rao told the defendant that the plaintiff could pay a sum of Rs. 40,000/- towards reconveyance or sale of the suit house. No such dialogue took place between the defendant and Annam Manikya Rao. It was further denied that any elderly persons or the persons mentioned in the said para consulted each other or that they advised the defendant to receive the sum of Rs. 35,000/- for reconveying the house in favour of the plaintiff. No such conversation took place between the defendant and the persons mentioned therein. It was further denied that the plaintiff agreed for an amount of Rs. 50,000/- or any other amount or that the plaintiff was asked to arrange for the said sum of Rs. 50,000/- or any other sum. The defendant denied that he agreed to receive any amount in full and final settlement or that he agreed to reconvey the suit house in favour of the plaintiff. The defendant further denied that there was any oral agreement or any compromise between the plaintiff and the defendant or that it was arrived at on the advise of the persons mentioned therein on 30-7-1980 or that the defendant left the Iron safe and household articles of the plaintiff belonging to the plaintiff in the said house as alleged. No such discussions took place and all the said allegations are concocted by the plaintiff. The defendant further pleaded that an iron safe and no other articles belonging the plaintiff was left in the suit house. All the articles belonging the plaintiff were removed from the suit house and only the Thijori was left. The defendant further denied that any oral agreement or compromise was arrived at as alleged on 30-7-1980 or any other date. The defendant further denied that the persons named therein approached Sri M.Surya Gupta, Advocate or that they informed him that the defendant agreed to receive Rs. 50,000/- or that the defendant agreed to reconvey the said house to the plaintiff. It was further denied that Mr. Surya Gupta, Advocate asked Sri Annam Manikya Rao to bring the defendant to his office either on 1-8-1980 or on any other date. It was further denied that Sri Annam Manikya Rao, Sri C.Malleshwar Rao and Sri Subodh Kumar went to the house of the defendant or that they told him that his Advocate Sri M.Surya Gupta wanted him immediately to go to the office. The defendant further denied that he told Sri Annam Manikya Rao to advise the plaintiff to arrange Rs. 50,000/- or that he told the said person that he would reconvey the suit house to the plaintiff for the sum of Rs. 50,000/- or any other sum. It was further denied that Sri Annam Manikya Rao told the defendant that the plaintiff would pay Rs. 25,000/- as advance on 1-8-1980 or that the alleged balance of Rs. 25,000/- should be paid at the time of the alleged execution or registration of the sale deed of the suit house in favour of the plaintiff. The defendant denied that he agreed to any such proposal or that such a proposal was put forward or that the defendant agreed and went to his Advocate''s office as alleged or that Sri M.Surya Gupta, Advocate, drafted any agreement to sell the suit house to the plaintiff for Rs. 50,000/- or any other sum or that the defendant agreed before Sri M.Surya Gupta to receive a sum of Rs. 25,000/- as advance or earnest money or the alleged balance amount of Rs. 25,000/- at the time of the alleged execution or registration of the sale deed of the suit house in favour of the plaintiff. The defendant denied that any such agreement took place or any such promise was made by the defendant in the presence of the persons mentioned therein. The defendant further denied that there was any such happenings in the presence of the defendant''s Advocate Sri M.Surya Gupta. The defendant further denied that any draft agreement to sell was prepared or got typed by Sri M.Surya Gupta or that Sri M.Surya Gupta gave any instructions to the defendant. The defendant further denied that Sri M.Surya Gupta gold the alleged persons to be present on 2-8-1980 at 4.30 P.M. or at any other time on 1-8-1980. It was denied that the five persons mentioned therein went to the office of Sri M.Surya Gupta, Advocate on 2-8-1980 at 7 p.m. or that they went there with cash of Rs. 25,000/- or that Sri M.Surya Gupta, Advocate was not available at that time on that day in his office. It was pleaded that Sri M.Surya Gupta had not given any such appointment nor did the said persons go there. It was further denied that on 3-8-1980 Sri Karike Balraj, Sri C.Malleshwar Rao, Sri M.Subodh Kumar, Sri N.Praveen Kumar and the plaintiff went to the defendant''s house or that they told the defendant that the plaintiff brought Rs. 25,000/- or that they asked the defendant to go to the defendant''s Advocate Sri M.Surya Gupta to enter into an agreement of sale pertaining to the said house. The defendant also denied that he sent word to him through his sister to bring Rs. 50,000/-. The defendant denied that he also told that if the plaintiff did not have money immediately to let the plaintiff to sell his General Bazar shop and pay the amount to the defendant forthwith. The defendant denied that Karike Balraj told his wife, sister or son of the defendant that he would pay Rs. 50,000/- on behalf of the plaintiff on 6-8-80. The defendant further denied that either he or the members of his family made any promise that the defendant would not change his mind and that if he did so the defendant''s tongue should be cut off. The defendant denied that from 5-8-1980 Sri Karike Balraj along with Sri Annam Manikya Rao went to the defendant with Rs. 50,000/- or that the defendant asked them to bring Linga Nagabhushanam or that Linga Nagabhushanam was sent to the defendant on the request of the defendant. The defendant denied that on 6-8-1980 Sri Karike Balraj, Sri Dubbayya or Sri Rama Rao came to the defendant''s house with cash of Rs. 50,000/- or that the defendant told them that he would consult his guru at Konga Raveirala village, Pahadi Shariff, Shamshabad, Hyderabad or that the defendant went along with Sri Dubbayya for that purpose as alleged or that the defendant''s guru advised the defendant to act according to the promise or the alleged agreement-cum-promise or that the defendant made any oral agreement on promise in the presence of the alleged persons. The facts are all twisted and distorted to make out a false case of an alleged promise. The defendant further denied that he was present when Sri Annam Manikya Rao, Karike Balraj, plaintiff, C.Rajeshwar Rao, K.Narayana Swamy, C.malleshwar Rao and others went to the defendant''s guru on 10-8-1980 or that the defendant''s guru advised the defendant to abide by his alleged promise or that the guru advised the defendant that if there is any difference between the defendant and the plaintiff, that both of them should have panchas and get the matters settled. The defendant denied that he had been avoiding to show his face to the plaintiff or to the alleged respectable businessmen or officers or that there is any need for the defendant to show his face to the plaintiff or to the alleged respectable businessmen or officers or that there is any need for the defendant to show his face to the defendant. The defendant denied that from 11-8-1980 the plaintiff or any of the persons mentioned therein came to meet the defendant with cash of Rs. 50,000/- or that the defendant had been avoiding to show his face or that the defendant is evading to receive the amount of Rs. 50,000/- or that the defendant is bound to receive the said amount or any portion thereof or that Maripalli Pandari is poisoning the defendant''s mind or that he is doing so to force the defendant to sell the General Bazar Shop to Maripally Pandari or that Maripally Pandari is a tenant of the defendant as alleged. The defendant further denied that on 25-8- 1980 at 8 a.m. M/s.Karike Balraj, Annam Manikya Rao, R.Pandarinath, Karre Narsimha, Malliah, Sambasiviah and others came to the defendant''s house or that they offered to pay the sum of Rs. 50,000/- or that the defendant told them that he would receive Rs. 50,000/- on the alleged date of execution or registration of the alleged sale deed or that the defendant told Karike Balraj that the defendant would receive the amount from Karike Balraj at the time of the alleged execution or registration of the alleged sale deed pertaining to the suit house in plaintiff''s favour. The defendant emphatically denied that on 25-8-1980 the defendant restored back possession of the suit house to the plaintiff in the presence of Sri Karike Balraj or any other persons either in part-performance of the alleged agreement or otherwise. The defendant stated the plaintiff illegally occupied the suit house by breaking open the lock put by the defendant. The defendant denied that he filed petition for reissue of the warrant, either strangely or mischievously or behind the back of the plaintiff or that the defendant had falsely stated in the petition that the plaintiff trespassed into the house and reentered the suit house by breaking open the lock. The defendant stated that he had to file petition for reissue of arrant because the plaintiff illegally broke open the lock and reentered the house. The defendant denied that Sri M.Surya Gupta, Advocate gave any ill-advise to the defendant or that the defendant filed petition because of any ill-advise. The defendant stated that the said allegations are not only false but highly defamatory. The defendant denied that the plaintiff broke open the lock and occupied the house illegally. The plaintiff then gave a notice with false allegations as an attempt to protect himself from the consequences of the plaintiff''s criminal action in braking open the locks and trespassing into the defendant''s house. Though the notice is dated 26-8-1980, it was actually posted on 30-8-1980 which shows that the notice is ante dated deliberately. Having come to know that the defendant filed a petition for issue of a fresh warrant, the plaintiff brought a notice issued by Sri G.M.Anjiah, Advocate for a copy of the alleged agreement knowing full well that no such agreement was prepared or got typed in the presence of the alleged elders. The defendant denied the allegations in the said Advocate''s notice and reiterated the facts stated in the reply of Sri M.Surya Gupta, Advocate. The defendant craves leave to read the contents of the reply of Sri M.Surya Gupta as part of the written statement. The defendant further denied that the reply of Sri M.Surya Gupta was a delayed reply or that it contains false allegations. The defendant pleaded that the notice to Sri M.Surya Gupta, Advocate, was given by Sri G.M.Anjiah, Advocate on 10-9-1980 and not on 26-8-1980 as alleged. the defendant further pleaded that Sri G.M.Anjaiah, Advocate, gave a notice to the plaintiff. Though it was dated 26-8-1980, it was actually posted on 3-9-1980 and it was actually received by the defendant on 3-9-1980. The defendant could not immediately send a reply as his mother was seriously ill during that time and she also died subsequently. The defendant admitted that the plaintiff filed a counter affidavit on 23-10- 1980 but the defendant stated that it contained all false allegations which were replied to by the defendant in his reply affidavit which was filed on 6-12-1980. The defendant denied that Sri M.Surya Gupta, Adocate, drafted the reply affidavit. The defendant further denied that there was any settlement as alleged or that the defendant resiled from the alleged agreement. The defendant stated that Sri M.Surya Gupta, Advocate, was forced to withdraw from the proceedings as the plaintiff deliberately made all false allegations implicating Sri M.Surya Gupta. Sri R.Madhusudan Rao, Advocate, drafted the reply affidavit dated 6-12-1980. The defendant denied that a lot of complicated points of facts and law had been deliberately put in or that the demand for reissue of warrant is false or that the plaintiff did not trespass into the suit house as alleged. The defendant further denied that all respectable elders or Advocates or Billion Merchants or General Merchants or Officers were present in Court to give evidence. The defendant further stated that the order dated 20-1-1981 speaks for itself. In fact, the order dated 20-1-1981 itself shows that the plaintiff was permitted to adduce evidence in proof of his contention that possession was given back to the Judgment-debtor as per the agreement allegedly entered into between the parties and which was clearly set out in the counter affidavit of the plaintiff filed in E.A. No. 115/90 on the file of I Asst. Judge, City Civil Court, Secunderabad. The defendant therefore denied that any misrepresentation was made to the Court or that the facts were twisted or misrepresented in the High Court. The defendant admitted that he filed C.R.P. No. 838/81 against the order in E.A. No. 115/90, but denied that he made it appear that the alleged docket order dated 2-9-1981 in E.A. No. 115/80 acknowledged the scope of enquiry or permitted specific performance of an oral agreement of sale as alleged. It was because of the contentions raised by the plaintiff that were not germane to the issue to be decided by the I Asst. Judge, namely, whether there should be a reissue of warrant that the defendant was constrained to file the Revision Petition. It is for the same reason that the High Court agreed with the objections put forward by the defendant''s Advocate Sri T.Veerabhadriah and the High Court observed that the only question that should be gone into on the execution application is whether the Execution Application is maintainable in view of the admitted fact that possession was already delivered to the Decree Holder and if it is found to be maintainable to order redelivery of possession subject to any order that the Judgment-debtor may obtain with reference to his agreement of sale in a separate suit. The defendant denied that the High Court gave any reasons as alleged for passing the orders dated 4-8-1981. The High Court made it clear that the plaintiff can enforce his agreement of sale by filing a separate suit for specific performance if he so chooses and the High Court also made it clear that matters ought to be agitated by the plaintiff have to be gone into by the appropriate Court in a properly constituted suit. The High Court also made it clear that the order does not intend to cast any reflection on the case of either party with respect to the alleged agreement of sale as set up by the plaintiff and denied by the defendant. The defendant denied that the order of the High Court directed the plaintiff to obtain an injunction in the meanwhile. The order of the High Court speaks for itself. The defendant denied that the High Court was inclined to pass the order which it did in view of the alleged omission under Sub-section (2) of Section 47. The defendant further denied that any reservation was incorporated in the order dated 14-8-1981 allowing C.R.P. No. 838/81. the High Court did not mention that it should be understood as expressing any adverse opinion against the plaintiff, but the High Court only made it clear that the order does not intend to cast any reflection on the case of either parties. The defendant denied that there is any direction to obtain any injunction as alleged. It was further pleaded that the petition was remitted back for consideration before the executing Court and the executing Court did in fact order reissue of the warrant. The defendant also stated that the Revision Petition filed by the plaintiff against the order of the I Asst. Judge, City Civil Court, Secunderabad filed by the plaintiff in the High Court was also dismissed at the admission stage itself. The defendant denied that the plaintiff took possession of the suit house on 25-9- 1980 in furtherance of or in part performance of any agreement of sale or that there was any concluded agreement of sale or any agreement of sale was entered into in the presence of the plaintiff and other persons as alleged. The defendant denied that Sri M.Surya Gupta, Advocate prepared any agreement of sale or that he kept the same with him or that he is taking advantage of the same, being allegedly kept with him. The defendant further stated that Sri M.Surya Gupta, Advocate did not prepare any agreement of sale and there is therefore no question of the same being kept with him. The defendant denied that the defendant is not entitled to evict the plaintiff from the suit house. The defendant further stated that he is evicting the plaintiff by due process of law by representing the Court to reissue the warrant for eviction, because the plaintiff illegally occupied the suit premises by breaking open the locks since the plaintiff had committed a crime by trespassing into the suit house, he is not entitled to any indulgence. The defendant denied that the process of recording full satisfaction is only a ministerial act or that situation does not render the warrant liable to be reissued. The defendant further stated that inasmuch as the plaintiff committed an abuse of his position the defendant is entitled as of right for reissue of a warrant. The filing of the suit and the prayer for consequential injunction is only an attempt to protract the litigation so that the plaintiff may remain in illegal occupation of the suit premises for several more years. The defendant therefore stated that the very filing of the suit amounts to a grave abuse of the process of Court and this tendency should be discouraged by courts, as otherwise, there will be no finality or end to the litigation. If the plaintiff is permitted to continue his illegal occupation of the suit house, the very object with which Courts or justice are constituted will be defeated and the defendant will be put to great injustice, hardship and irreparable loss. The defendant denied that the plaintiff is entitled to any decree for specific performance. The defendant also denied that there was any agreement to sell or that the plaintiff had been restored back the possession in furtherance of or in part-performance of the alleged agreement to sell. The defendant denied that the plaintiff had always been ready and willing to pay to the defendant the alleged amount of Rs. 50,000/- or that the plaintiff offered the same to the defendant either personally or along with elders. The circumstances in which Sri G.M.Anjaiah, Advocate, issued notice dated 26-8-1980 which was actually posted on 30-8-1980 are already set out supra. The defendant denied once again that any agreement was drafted by Sri M.Surya Gupta, Advocate, in his office before the alleged elders. The defendant emphatically denied that the plaintiff is entitled to any ancillary injunction or any ad-interim injunction as alleged or that the plaintiff will be put to any irreparable or substantial or irretrievable or irremediable or irreversible injury if he is evicted from the suit house in view of the alleged circumstances. On the other hand, as observed by the High Court in C.R.P. No. 522/82 while dismissing the C.R.P., at the admission stage that it is incomprehensible that the defendant having successfully litigated upto the Supreme Court and having been successful in all the Courts and having forthwith taken steps to obtain satisfaction of the decree and got a warrant issued, would have given up all his rights on an alleged agreement of sale during the interval between 2-8-1980 and 9-9-1980 before satisfaction, the decree was recorded. The defendant further stated that on the other hand if any ancillary injunction or ad-interim injunction orders are issued on the mere allegations of the plaintiff and the story laboriously concocted by him with the help of his friends, the defendant would be put to grave and irreparable loss and there would be no finality to any litigation, if persons like the plaintiffs are able to file suits of this nature and if the plaintiff allowed to remain in illegal occupation of the suit premises for another round of several years.

It was further pleaded that the allegations made in the plaint do not give the impression that there was any fresh agreement of sale concluded between the plaintiff and the defendant and the plaintiff had therefore no made out any case, much less, a prima facie case for grant of injunction.

The defendant denied that the passing of receipts on 30-7-1980 gave any cause of action to the plaintiff. The defendant denied that the iron safe contained any household articles or archives. The defendant denied that Sri M.Surya Gupta, Advocate, asked Sri Annam Manikya Rao to bring the defendant on 1-8-1980. The defendant emphatically denied that he agreed to reconvey the suit premises or that he did so by way of an agreement to sell or that he did so for a consideration of Rs. 50,000/- or any other sum. The defendant denied that any agreement of sale was drafted on 1-8-1980 or any other day or that the parties were directed to complete the agreement in writing the next day or that the defendant agreed to receive Rs. 50,000/- on the alleged date of execution or registration on 25-8-1980 or any other date. The defendant further denied that he delivered vacant possession of the suit house on 25-8-1980 or any other date. It was further stated that the plaintiff broke open the locks put by the defendant on the suit house and the plaintiff illegally occupied the suit house. The defendant emphatically denied that the plaintiff has any cause of action to file the suit or that it arose on the dates mentioned. The defendant respondent emphatically denied that there is any direction contained in C.R.P. No. 838/81 as alleged in the plaint while allowing the C.R.P. The observations made in C.R.P. No. 838/81 speak for themselves. The defendant further denied that the Executing Court without considering all the facts before it ordered a reissue of the warrant.

The defendant further pleaded that the relief of perpetual injunction had been grossly undervalued. The plaintiff is bound to pay a Court fee on the market value of the suit property for the relief of perpetual injunction prayed for in the suit. The Court fee paid is therefore insufficient and the plaintiff should be directed to pay the Court fee on the market value which is more than Rs. 2 lakhs. The defendant denied that the plaintiff is entitled to value the relief of injunction u/s 26(c) of the A.P. Court Fee Act at Rs. 500/- only.

Further, the defendant pleaded that the true facts are that the plaintiff''s father was allotted the suit house under a partition between Sri Narra Ganesh and his brother Sri Narra Ramaswamy for H.S.Rs.4500/- by a partition deed executed on 28-4-1938 and the said Narra Ganesh had originally sold to one Thigulla Babiah, two premises out of which, the suit house was one for the sale consideration of H.S.Rs.4500/- and on the same day, Thigulla Babaiah executed a deed of reconveyance agreeing to reconvey the house for the same consideration for which he purchased the properties from the father of the plaintiff. Being unable to procure the money to pay to Thigulla Babiah, the plaintiff and his father Sri Thigulla Babaiah under a sale deed dated 19-8-1943, sold the suit house to the defendant''s father for the sale consideration of H.S.Rs.4500/-. As they were in possession after the sale in favour of the defendant''s father, they executed a rental agreement in favour of defendant''s father agreeing to pay a monthly rent of H.S.Rs.22-50. The plaintiff''s father and after his death the plaintiff himself was irregular in the payment of rent and the defendant was therefore forced to file a petition under the Rent Control Act for eviction on the ground of willful default in payment of rents. The plaintiff resisted the application filed by the defendant claiming that he was the owner and landlord of the house and that the allegation of tenancy was false. He also claimed title to the property by appreciation. The learned Rent Controller dismissed the defendant''s application holding among other things that there was no relationship of landlord and tenant. The learned Chief Judge, City Small Causes Court, Hyderabad also dismissed the defendant''s appeal (R.A. No. 538/1968) by his Judgment dated 14th April 1970 and confirmed the order of dismissal passed by the Rent Controller. The defendant filed a Civil Revision Petition to the High Court but the High Court by its order dated 18-1- 1970 dismissed the defendant''s Civil Revision Petition holding that the Chief Judge, City Small Causes Court sitting in Appeal under the Rent Control Act is incompetent to determine questions of title and further observed that it is always open to the defendant to establish his title in a Civil Court. After the dismissal of the said Civil Revision Petition, the defendant and his mother filed a civil suit or ejectment of the plaintiff from the suit house bearing old No. 2486 (New No. 3-3-650 and 659), for recovery of arrears of rent and also damages for use and occupation. The defendant filed the suit in 1971 and after a keen contest by the plaintiff, the suit was ultimately decreed after nearly three years i.e., 31-1-1974. Thereafter, the plaintiff filed an Appeal A.S. No. 52/1974 and the Additional Chief Judge, City Civil Court, Secunderabad, dismissed the Appeal on 8-12-1975. Thereafter the plaintiff preferred Second Appeal No. 781/1975 to the High Court and the High Court by its order dated 20-6- 1977 dismissed the Second Appeal and granted three months'' time to the plaintiff to vacate the suit house. As a last resort, the plaintiff filed SLP in the Supreme Court and the Supreme Court granted leave to Appeal and also stay of further proceedings and directed that the Appeal should be posted to a near date and finally on 15-1-1990, the Supreme Court dismissed the plaintiff''s Appeal (C.A. No. 2965/1977) holding that the Appeal has no substance. Thus, after fighting the plaintiff in all the Courts from 1967 to 1980, the defendant finally succeeded in getting an order of eviction against the plaintiff from the suit house which was confirmed by the Supreme Court in January 1980. Thereafter, the defendant filed E.P. No. 67/80 and the bailiff of the Court was directed to put the defendant and his mother in possession of the suit house by removing all persons bound by the decree. The defendant got the Warrant executed on 30-7-1980. There was one big steel almirah (Thijori) which could not however be removed and the bailiff told the defendant that he would handover the house to him with Thijori and after obtaining the permission of the Court, the Thijori would be removed. The bailiff obtained two receipts from the defendant, one for handing over possession of the suit house and the other for the Almirah (Thijori) which was kept in the defendant''s custody. At the time when the Warrant of execution was being executed by the bailiff of the Court, some people were watching the proceedings, but on the approach of the family members of the plaintiff, they took pity on the plaintiff and then one by one began to persuade the defendant by threats by some and by entreaties by others to sell the suit house to the plaintiff. The defendant did not accept any of their proposals which were made under duress threats and persuasion. Defendant also told them that he had to consult his mother and other elders. Subsequently some gentlemen approached the defendant''s Advocate Sri M.Surya Gupta on 1-8- 1980. The plaintiff did not accompany the said persons to his Advocate. Large number of persons went to the office of the defendant''s Advocate Sri M.Surya Gupta at about 8 p.m. and they all in one voice pleaded for the plaintiff and requested the defendant''s Advocate to persuade the defendant to sell the property to the plaintiff. At that time the defendant''s Advocate sent for defendant through Sri Annam Manikya Rao. At that time every one who went to Sri M.Surya Gupta, Advocate knew that the defendant''s Advocate refused to interfere or persuade the defendant in any manner. The defendant''s Advocate was told in the defendant''s presence of the manner in which persons like Sri P.L.Gajapathi Rao, Advocate, Sri Maripalli Pandari and others expressed sympathy or the plaintiff and of the offers made to him from time to time while the eviction of the plaintiff was in progress. It was also stated that the highest offer made by well-wishers of the plaintiff was Rs. 50,000/- and that half the amount would be paid immediately and that the defendant should give possession of the suit house to the plaintiff and that the balance of the sale price would be paid when the sale deed is registered within one month''s time. The defendant stated that he never agreed nor was he willing to sell the house to the plaintiff at any cost, particularly when he took him to all the Courts upto Supreme Court and fought the case for several years. Reserving his right to consult his mother, who is also having a right in the property and subject to her consent, the defendant stated that he would not sell the house to the plaintiff for any amount and that if any person from among those who are trying to negotiate should come forward to purchase it and he would discuss the price and terms of the sale and let them do with the suit house as they like after fulfillment of the terms which may be agreed upon between the defendant and him. The defendant and his Advocate then asked Sri Annam Manikya Rao, whether he would subscribe his name in the purchase of the suit house but he evaded to give his name or purchase the suit house. Similarly Maripalli Krishna Murthy and Maripally Pandari were asked and they too did not want to be personally involved in the matter. Then there was a lot of confusion among the persons who pleaded for the plaintiff. It was at that time that Sri P.L.Gajapathi Rao, Advocate, suggested to the defendant''s Advocate to keep a skeletal agreement prepared so that as soon as the terms were settled a pucca agreement could be prepared and signed by the parties without further delay. The defendant''s Advocate then accepted the suggestion of Sri P.L.Gajapathi Rao which was found reasonable in those circumstances and the defendant''s Advocate promised to do so but, as it was 9 p.m. the matter ended there and everyone left. Thereafter no person approached Sri M.Surya Gupta, Advocate and no draft agreement was typed or read over to the parties or got approved by the parties on 1-8-1980 or on any other day at the office of Sri M.Surya Gupta, Advocate of the defendant. It was further stated that after the above incident at the defendant''s Advocate''s office, some of the relatives and friends of the plaintiff were coming to the defendant''s house in large numbers and were trying to pressurize the defendant by persuasion and threats in order to coerce the defendant to enter into an agreement of sale. The defendant informed those persons that his mother and other elders and well-wishers were not in favour of selling the suit house to the plaintiff or to any of his well-wishers. Some persons also approached the defendant''s guru at Kongara Raverala village to persuade the defendant to sell the suit house to the plaintiff but the defendant''s guru advised them that the almirah (Thijori) of the plaintiff should first be removed from the suit house before any talks can be initiated in the matter and that he will be available if his services were required in the matter. It was also further stated that the plaintiff having failed in his attempt to compel the defendant to sell the suit house, resorted to force, broke open the locks and trespassed into the suit house and took over possession of the suit house unlawfully and illegally. The defendant denied that he had delivered back possession to the plaintiff the suit house on 25-8-1980 as is falsely alleged by the plaintiff. The plaintiff started pressurizing the defendant through his friends and relatives to sell the suit house to the plaintiff for which the defendant was not prepared. On 26th and 27th of August 1980 the plaintiff and one Maripalli Pandari came to the defendant''s house and shouted at the defendant stating that if the house is not sold to the plaintiff, the defendant would be killed and they abused the defendant and threatened him in every way. Then the defendant gave a police complaint on 28-8-1980 requesting for protection. Having thus taken illegal possession of the suit house, the plaintiff got a notice issued to the defendant by his Advocate, falsely setting up a case that the defendant had agreed to sell the suit house to the plaintiff for a sum of Rs. 50,000/- and that the said amount was kept with Sri Karike Balraj. It had been asserted in the notice that the plaintiff had been in possession of the suit house from 25-8-1980 without mentioning how the plaintiff came into possession of the suit house. The said notice further stated that if the defendant does not receive the amount of Rs. 50,000/- within 24 hours and perform the alleged agreement by executing a sale deed in favour of the plaintiff, a suit will be filed against the defendant. The allegations contained in the said notice are absolutely false and was an attempt to concoct a false agreement and to indirectly inform the defendant that the plaintiff had taken illegal possession of the suit house. Though the notice was dated 26-8-1980, it was actually posted on 30-8-1980 which clearly shows that the notice was ante-dated with ulterior motives. Immediately after receiving the said notice, which the defendant received on 3-9-1980, and by which the defendant came to know that the plaintiff broke open the locks put by the defendant on the suit house and that the plaintiff illegally trespassed into and occupied the defendant''s house, the defendant gave a complaint to the Assistant Commissioner of Police on 4-9-1980. The defendant''s mother on coming to know of the trespass became very much worried and she fell seriously ill and subsequently died on 5-10-1980. Meanwhile, E.P. No. 67/80 which was posted for the bailiff''s report to 2-8-1980 was adjourned on that day to 9-9-1980 as the Presiding Officer was on leave on 2-8-1980. On 9-9-1980 the defendant filed an application in E.P. No. 67/80 for reissue of warrant. The said application was numbered as E.A. No. 155/80. On 10- 9-1980, the plaintiff got another notice issued to Sri M.Surya Gupta, Advocate, through his Advocate Sri G.M.Anjaiah calling upon the defendant''s Advocate Sri M.Surya Gupta to send a copy of the agreement of sale which is alleged to have been prepared and typed and read over to the persons mentioned in the said notice and allegedly approved by the parties in the presence of the persons mentioned therein. All the persons mentioned in the said notice are either the friends of the plaintiff or his relatives and it is absolutely false to say that any agreement was prepared or typed out or read over by the defendant''s Advocate. The defendant''s Advocate gave a reply to Sri G.M.Anjaiah, Advocate to the notice received by him from the latter. The said reply was issued on 15-9- 1980. As the defendant''s mother became seriously ill and also subsequently died, the defendant could not sustained a reply to the notice issued to him. The defendant''s mother died on 5-10-1980 and the defendant could give a reply only on 22-11-1980. The defendant reiterated the facts stated by him in his reply dated 22-11-1980 and denied all the adverse allegations in the notices given by Sri G.M.Anjiah, Advocate, to the defendant''s Advocate and the defendant. On 23-10-1980, the plaintiff herein, as Judgment-debtor in E.P. No. 67/80 filed a counter to the defendant''s application for reissue of the warrant (E.A. No. 115/80) wherein he made a personal attack on the defendant''s Advocate Sri M.Surya Gupta and also falsely set up a case that there was settlement and adjustment out of the Court and that the Judgment-debtor was given back possession of the property to hold it as owner awaiting for a deed to be executed after receipt of consideration allegedly to be kept as deposit with Sri Karike Balraj. As personal allegations were made against the defendant''s Advocate Sri M.Surya Gupta, the defendant had to change his Advocate and he filed a reply affidavit, setting out the true facts and denying that there was any settlement with the Judgment-debtor and redelivery of possession pursuant to the alleged settlement. The defendant also stated that the Judgment-debtor cannot agitate about the alleged agreement in the Execution Proceedings. On 20- 1-1981, after hearing both sides, the learned I Asst. Judge passed an order in E.A. No. 155/80 permitting the Judgment-debtor to adduce evidence in proof of his contention that after the premises as delivered to the defendant by the bailiff, possession was given back to the Judgment-debtor as per the agreement allegedly entered into between the parties. Aggrieved by the said order, the defendant went in revision to the High Court and by its order dated 14-8-1981, the High Court disposed of the defendant''s Revision Petition by holding that the only question that should be gone into in the execution petition is whether the execution application is maintainable in view of the admitted fact that possession was delivered to the Decree Holder on 30-7-1980 and that if it is found that such an application is maintainable, then the Executing Court can order redelivery of possession, subject to any orders that the Judgment-debtor may obtain with reference to his agreement of sale in a separate suit. The High Court further observed that it shall be open to the Judgment-debtor to file a suit for specific performance if he so chooses for enforcing the alleged agreement of sale pleaded by the Judgment-debtor and to obtain such orders as he might think appropriate from the trial Court with respect to his possession. After passing of the said order by the High Court, the plaintiff filed the present suit in the circumstances mentioned above. Subsequently the learned I Asst. Judge, City Civil Court by his order dated 29-12-1981 allowed E.A. No. 115/80 and ordered the issue of a fresh. The plaintiff preferred a Civil Revision Petition to the High Court C.R.P. No. 522/82 but the said C.R.P. was dismissed at the admission stage on 26-2-1982. The defendant further denied that he was threatening to evict the plaintiff taking advantage of the fact that no delivery order had been recorded on 2-8- 1980. The defendant further denied that the warrant cannot be reissued once it was issued. The defendant also denied that the plaintiff will be put to any loss or injury if he is dispossessed from the suit house as alleged. On the other hand, the defendant stated that the case set up by the plaintiff is not only false but absurd. It is further stated that it is preposterous allegation by the plaintiff that after having fought for several years and having obtained an order of ejectment which is confirmed by the highest Court, the defendant would have agreed to resell the suit house to the plaintiff or that he would have put the plaintiff in possession of the suit house on 25-8-1980 as alleged by the plaintiff. The facts pointed out by the defendant in the written statement clearly show that the allegations of the plaintiff are false and concocted by him with a view to retain the suit house, the possession of which he had obtained by illegally breaking open the locks and trespassing into the suit house. The defendant denied that he received more than Rs. 30,000/- towards interest or that it is wrongly termed as rent. The defendant further stated that the plaintiff is now precluded from alleging that the transaction is not one of sale as a verdict had been given that the transaction is a sale and also confirmed by the highest Court. it was also stated that the plaintiff was highly irregular in payment of rents and that he received only a total sum of Rs. 8000/- towards rent and also the amounts borrowed under the promissory notes executed after the sale of the suit house. The plaintiff himself filed an affidavit on 24-2-1978 in the Supreme Court that the suit house is worth of Rs. 1 lakh. It is absurd to believe that the defendant had agreed to sell the suit house to the plaintiff for a sum of Rs. 50,000/-. The amount of H.S.Rs.4500/- paid by the defendant''s father represents the value of the suit house when the defendant''s father purchased it. The defendant denied that the plaintiff will be put to any loss if no injunction is granted or that it is very difficult for a man like plaintiff who fought with the defendant for several years in Courts to get another house if he is evicted from the suit house. On the other hand, if any injunction is passed against the defendant, the defendant will be put to great and irreparable loss and injury as he had obtained an order of eviction after fighting for more than 14 years and if the plaintiff is permitted to remain in the suit house till the final disposal of the suit the defendant will have to wait for several years more to reap the fruits of his decree. The very filing of the suit is nothing but an attempt to protract the legal proceedings. The defendant further stated that if he had deprived of the possession of the suit house he will be losing a monthly rent of Rs. 1500/- which is the minimum rent which the suit house can fetch as the suit house is situate in a predominantly commercial area. There are 12 rooms in the suit house and the suit house is a double-storeyed building. The area of the suit premises is over 200 sq. yards and the plinth area is over 2000 sq. feet. The defendant further stated that the plaintiff is not entitled to any of the reliefs sought for in the plaint and prayed that the suit be dismissed with costs. It was also further stated that the suit as framed is frivolous and vexatious to the knowledge of plaintiff and it had been filed with the sole object of protracting the litigation and to enable the plaintiff to remain in illegal occupation of the suit house for several years till the suit is finally decided. The defendant reserved liberty to file appropriate suit for damages in this regard. It was further stated that while dismissing the suit with costs, the plaintiff may be awarded the maximum amount of compensatory costs which the Court is entitled to award u/s 35A of the Code of Civil Procedure.

Issues and additional issue settled by the trial Court :

Issues:

Whether the plaintiff is entitled for specific performance of the contract in respect of the suit schedule property ?

Whether the plaintiff is entitled for perpetual injunction against the defendant ?

To what relief ?

Additional Issue:

Whether the plaintiff is entitled for possession as prayed for ?

Evidence adduced by the parties:

Witnesses examined for plaintiff

P.W.1 - Narra Madhava Rao

P.W.2 - P.L.Gajapathi Rao

P.W.3 - AnManikyam

P.W.4 - K.Balraj

Witnesses examined for defendants:

D.W.1 - Sadasiva Rao

D.W.2 - M.Surya Gupta

Documents marked for plaintiff:

Ex.A.1/26-8-1980 - Office copy of the notice got issued by the plaintiff to the defendant

Ex.A.2/20-9-1980 - Another notice got issued by the plaintiff to the defendant''s Advocate (DW-2)

Ex.A.3/12-11-1980 - office copy of the legal notice got issued by the plaintiff to D.W.2

Ex.A.4 - Reply notice issued by the defendant to the plaintiff

Ex.A.5/8-12-1980 - Rejoinder issued by the plaintiff to the defendant

Ex.A.6/8-12-1980 - Certificate of Post issued by Post Office

Ex.X.1 - Entry for Rs. 50,000/- in the Day Book-cum- Cash Book of P.W.4 at page No. 124

Ex.X.2 - Connected with Ex.X.1 relevant entry for Rs. 50,000/- in the ledger of P.W.4 in the name of P.W.1 at page No. 42. Documents marked for defendants:

Ex.B.1 - Copy of C.R.P. No. 2835/85 (marked through P.W.1 is read as Ex.B.1)

Ex.B.1(a)/28-4-38 - Partition Deed between the parties

Ex.B.2/9-5-38 - Registered sale deed executed by the father of the plaintiff and plaintiff in favour of Thigulla Babayya

Ex.B.3/19-8-43 - Registered sale deed executed by Thigula Babayya and others in favour of father of D.1 (deceased).

Ex.B.4/19-8-43 - Rental Agreement executed by plaintiff and his father in favour of defendant''s father (All Deeds annexed with plan)

Ex.B.5/2-10-45 - Letter of plaintiff and his father to D.1.

Ex.B.6/25-9-68 - certified copy of order in Rc. No. 376/Evidence.67

Ex.B.7/14-4-70 - Certified copy of Judgment in R.A. No. 538/68

Ex.B.8/31-1-74 - Certified copy of Judgment in O.S. No. 351/71 on the file of the I-Asst.Chief Judge, City Civil Court, Secunderabad (Printed Copy)

Ex.B.9/18-11-75 - Certified copy of Judgment in A.S. No. 52/74 on the file of the Addl.Chief Judge, City Civil Court, Secunderabad.

Ex.B.10/20-6-77 - Certified copy of Judgment in S.A. No. 781/75 and C.M.P. No. 2230/77 of the High Court of the A.P.

Ex.B.11/22-7-80 - Certified copy of the Warrant of the Bailiff U/O.21 R-35 in E.P. No. 67/80 in O.S. No. 351/71 of the I-Asst.Judge, City Civil Court, Secunderabad.

Ex.B.12/12-1-80 - Report of the Bailiff (Govindaiah), certified copy, submitted with reference to Ex.B.11.

Ex.B.13/30-7-80 - Receipt issued by the defendant to the Bailiff in toke of delivery of vacant possession of H. No. 2486 (C/c)

Ex.B.14/30-7-80 - Receipt issued by the defendant to the Bailiff in toke of delivery of Thijori (certified copy)

Ex.B.15/30-7-80 - Certified copy of Panchanama conducted by S.Govindaiah, Bailiff with reference to Ex.B.11.

Ex.B.16/4-9-80 - Office copy of the Complaint of the defendant to the Police.

Ex.B.17 - Postal acknowledgement of Inspector of Police, Mahankali Police Station for receipt of Ex.B.16.

Ex.B.18/28-8-80 - Office copy of complaint to the A.C.P., Marredpally, lodged by the defendant.

Ex.B.19 - Postal Acknowledgement with reference to Ex.B.18 of Inspector of Police, Mahankali Police Station

Ex.B.20 - Postal acknowledgement of Inspector of Police, Market Street P.S., Secunderabad.

Ex.B.21 - Postal acknowledgement of ACP, Marredpally with reference to

Ex.B.18.

Ex.B.22 - Postal Acknowledgement of Commissioner of Police, Hyderabad, with reference to Ex.B.18.

Ex.B.23/26-8-80 - Legal notice got issued by the plaintiff to the defendant

Ex.B.24 - Postal cover for Ex.B.23.

Ex.B.25/22-11-80- Reply of the defendant to the plaintiff for Ex.B.23.

Ex.B.26/14-8-81 - Carbon copy of Judgment of High Court of A.P. in C.R.P. No. 838/81

Ex.B.27/16-3-81 - Carbon copy of Order of the High Court of A.P. in C.M.P. No. 2656/81

Ex.B.28/29-12-81- Certified copy of Order of I-Asst.Judge, City Civil Court, Secunderabad, in E.A. No. 115/80 in E.P. No. 67/80.

Ex.B.29/25-2-84 - Certified copy of Order of I-Asst.Judge, City Civil Court, Secunderabad in E.A. No. 140/83 in E.P. No. 67/80 dt.25-2-1984

Ex.B-30/14-6-1985 - Certified copy of common order of I Asst. Judge, City Civil Court, Secunderabad in I.A. No. 82 and 83 of 1984 in R.A. Nos. 124 and 129 of 1983

Ex.B-31 - Carbon copy of order of Hon''ble High Court in C.R.P. No. 3835/83

Ex.B-32/15-7-1982 - Affidavit of Sri M.Surya Gupta, Advocate in I.A. No. 346/81 in O.S. No. 913/81 on the file of IV Additional Judge, City Civil Court, Hyderabad

Ex.B-33 - Letter addressed by G.M. Anjaiah, Advocate, on behalf of the plaintiff therein to Sri M.Surya Gupta, Advocate dt.10-9-1980 Ex.C-1 Affidavit of Sri Karike Balraj in I.A. No. 840/81 in O.S. No. 915/81 dt.31-8-1981

Ex.C1(a) - A para in Page 7 in Ex.C-1

Findings recorded by the trial Court in brief: The learned I Additional Judge, City Civil Court, Hyderabad after referring to the respective pleadings of the parties and also on appreciation of the evidence available on record, answered Issue No. 1 and additional Issue No. 1 at paras 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 and referred to the oral and documentary evidence available on record and several of the discrepancies in the oral evidence and also discussed the documentary evidence in detail and came to the conclusion that the alleged oral agreement of sale as pleaded in the plaint is not supported by the oral and documentary evidence placed before the Court. It is no doubt true that PW-2 to PW-4 are responsible persons in the society and it is not as if their evidence remained non-conflicting and the same being not cogent and because of the contradictions and improbabilities, the plaintiff''s case based on the oral agreement of sale cannot be believed and since the proof expected to be discharged in relation to the alleged oral agreement of sale not being discharged, the plaintiff is not entitled to the relief and accordingly answered Issue No. 1 and additional Issue. While answering Issue No. 3, ultimately the learned Judge came to the conclusion that the plaintiff is not entitled to the relief of specific performance or possession and accordingly the suit was dismissed with costs. Aggrieved by the same, the present Appeal had been preferred.

In the light of the submissions made by the Counsel on record, the written arguments placed before this Court, the oral and documentary evidence pointed out and also the findings recorded by the trial Court, the following Points arise for consideration in this Appeal:

Whether the findings recorded by the trial Court while negativing the relief of specific performance on appreciation of the oral and documentary evidence specified supra to be confirmed or to be modified or to be in any way disturbed or to be set-aside in the facts and circumstances of the case ?

If so, the what relief the parties would be entitled to ?

Point No. 1: For the purpose of convenience, the parties hereinafter would be referred to as shown in O.S. No. 915/81. It is needless to say as already aforesaid, the 1st defendant died and the legal representatives were brought on record. The purchasers pendente lite also were brought on record and it is also pertinent to note that as against certain of the defendants i.e., respondents 5 and 6, the Appeal was dismissed for default, may be that certain of the legal representatives of the deceased 1st defendant/1st respondent had been served and those parties are being represented by the Counsel. The respective pleadings of the parties, the evidence available on record, the findings recorded by the trial Court in brief already had been referred to above and hence the same need not be repeated in detail again.

The appellant, the unsuccessful plaintiff, filed this Appeal being aggrieved of the Decree and Judgement made in O.S. No. 951/81 which was filed praying for the relief of specific performance of oral agreement of reconveyance as per the compromise said to have been entered into between the parties in the presence of PW-2 to PW-4, PW-1 no doubt being the plaintiff, on 30-7-1980. It is also the case of PW-1 that immediately after commencement of the execution of warrant by the bailiff in E.P. No. 67/80 the said warrant was not fully executed and the delivery of possession also was not reported to the executing court. The said compromise had taken place in the presence of PW-1 to PW-4 and the 1st respondent no doubt who is no more promised to reconvey the plaint Schedule house for a sum of Rs. 50,000/- which was kept in deposit as Exs.X-1 and X-2 and it is also the case of PW-1 that a draft sale deed was prepared by Advocate Sri M.Suryagupta - DW-2 with the assistance of PW-2 Sri P.L.Gajapathi Rao. It is not in controversy that both DW-2 and PW-2 were senior advocates of Secunderabad and both are no more. Elaborate submissions had been made on the strength of this evidence of PW-2 and DW-2 as well by Mr. Narasimham, the learned Counsel representing the appellant/plaintiff and Sri C.Bala Gopal, the learned Counsel representing the respondents as well.

It may be pointed out that during the pendency of the suit O.S. No. 915/81 aforesaid, the 1st defendant died and the legal representatives, defendants 2 to 6, were brought on record by virtue of an order in I.A. No. 434/90, dated 28-6-1990. As per records as against Jyothi and Anuradha, defendants 5 and 6, shown as respondents 5 and 6 in the Appeal, the Appeal was dismissed for default. It may be true that certain of the legal representatives of 1st respondent/1st defendant are available on record. Though the interest may be somewhat common, it is pertinent to note that all these legal representatives are having their individual interest or individual shares in the property in question. It is also brought to the notice of the Court that these legal representatives already had parted with this property and the alienees pendente lite also had been brought on record as already specified supra. May be that this question also may have to be considered whether the relief of specific performance which had been negatived by the trial Court be reversed on appreciation of the evidence available on record on merits in the absence of all the parties being on record in view of the fact that the Appeal was dismissed for default as against respondents 5 and 6 as aforesaid. However, since the doctrine of representation of the estate of the deceased Sadasiva Rao had been pressed into service before this Court, this Court is inclined to refer to the other evidence on record too. But however, in the light of the nature of the stands taken, the interest of respondents 6 and 7 being separate, no doubt which had been parted away in favour of the purchasers pendente lite, it is highly doubtful whether the findings can be recorded on merits. But however, here is a peculiar situation that respondents 5 and 6 also had parted their interest in favour of the purchasers pendente lite and it is pertinent to note that the purchasers pendente lite already were brought on record and may be in this view of the matter also the findings may have to be recorded on merits.

Be that as it may, the trial Court recorded the findings on appreciation of the oral and documentary evidence available on record in detail and negatived the relief of specific performance. At the outset it may be stated that the relief of specific performance being a discretionary relief, always necessarily such relief need not be granted though it is lawful to do so. On the basis of a given set of circumstances, the Courts may be justified in moulding the relief and granting other appropriate reliefs or in negativing such discretionary relief of specific performance. This Court may have to scrutinize the evidence available on record so as to arrive at a conclusion whether the findings recorded by the trial Court are to be confirmed or are to be disturbed.

Several submissions were made by the Counsel representing the appellant in detail and the oral and documentary evidence available on record also had been referred to and the non-bona fides on the part of respondents 7 to 11, the purchasers pendente lite, also had been highlighted. In this context Ex.B-16 and Ex.B-22 had been referred to. Several submissions were made relating to Ex.B-3 and these submissions need not detain this Court any longer for the reason that there was a series of prior litigations and the decree made in the suit for recovery of possession had attained finality and the same was put into execution and hence the said question already settled or the findings already recorded cannot be reagitated again. However, while making elaborate submissions, the Counsel for appellant had pointed out to Section 58c and Section 53A of the Transfer of Property Act and Sections 114 and 116 of the Indian Evidence Act and also certain provisions of the Specific Relief Act as well. Section 10 of A.P. Rent Control Act also had been referred to and elaborate submissions had been made on the aspect of jurisdiction as well. Incidentally, Section 11 of the CPC also had been referred to and relied upon. The undernoted decisions had been strongly relied upon:

Harshavardhan Chokkani v. Bhupendra N. Patel 1; Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, ; Hira Singh Pal Vs. Madan Lal, ; Babu Lal Vs. Hazari Lal Kishori Lal and Others, ; Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, ; The Upper Ganges Sugar Mills Ltd. Vs. Khalil-ul-rahman and Others, ; Achintya Kumar Saha Vs. Nanee Printers and Others, ; Union of India (UOI) and Others Vs. West Coast Paper Mills Ltd. and Another, ; Rajeshwar Prasad and Another Vs. Sita Ram Marwari and Others, ; Sheodhari Rai v. Suraj Prasad Singh AIR 1958 S.C. 758 ; Om Prakash Gupta v. Dr. Rattan Singh and Anr. 1963(II) S.C.J. 475; Smt. Qamar Begum Vs. Pyata Srinivasa Rao and Others, ; B. Narsing Rao v. Parvathi Bai 1977 A.L.T. 627 ; Uttam Chand Vs. Smt. Radhabai, ; Leela Vs. Ambujakshy and Others, ; Bhoju Mandal Vs. Debnath Bhagat, ; Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, ; T.M. Balakrishna Mudaliar Vs. M. Satyanarayana Rao and others, ; Gaffer v. Sha Jehan Begum 1980(2) APLJ 32 ; Amar Krishna Mukherjee Vs. Sm. Asha Rani Ghosh and Others, ; Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., ; Keshav Kumar Swarup Vs. Flowmore Private Limited, ; M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., ; Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, ; T.M. Balakrishna Mudaliar Vs. M. Satyanarayana Rao and others, ; Sheogobind Bhakat and Others Vs. Sujan Mahto and Others, ; K. Simrathmull Vs. S. Nanjalingiah Gowder, ; Mohammed Ali Khan Vs. Hakim Khaja Shafi Hasan, ; L. Rama Goud (died) Lrs. Gopinath and Others Vs. Raju Bai and Others, ; Kiran Singh and Others Vs. Chaman Paswan and Others, ; Urban Improvement Trust, Jodhpur Vs. Gokul Narain and another, ; K.C. Machanda Vs. Murree Brewery Co., Rawalpindi, ; Ameena Bee Vs. Noorjahan Begum and others, ; K.P. Janakiram Vs. K. Suguna Bai, ; Smt. Qamar Begum Vs. Pyata Srinivasa Rao and Others, ; D. Satyanarayana Vs. P. Jagadish, ; Gollapalli Kanakam Vs. Dokala Mutyalu, ; Bibijan and Others Vs. Chintakridi Narasimham and Sons, ; Smt. Isabella Johnson Vs. M.A. Susai, ; Deokuer and Another Vs. Sheoprasad Singh and Others, ; R. Rama Murthy v. Government Of Andhra Pradesh 1986(2) APLJ 136 ; Mumtaz Ali Khan and Another Vs. Rupender Pershad and Another, .

Coming to the evidence available on record, PW- 1/plaintiff deposed that he knows the 1st defendant since the time of his father and the plaint Schedule house originally belonged to them and it was their ancestral property and the suit house was allotted to the share of his father in a division between his father and his younger brother. PW-1 also deposed about the contracting date and how the interest had been calculated and how his father and this witness executed the sale deed along with Babaiah in favour of the father of the defendant in stead of mortgage deed as security for redemption. PW-1 also deposed that this was to get over the provisions of Hyderabad Money Lenders Act. PW-1 also deposed that the said Laxmiah promised that he would reconvey the suit house to them as soon as we discharge the loan. PW-1 deposed about the endorsement of interest rates and the death of Laxmiah in 1954. He further deposed that his father died in 1962. The 1st defendant filed R.C. No. 376/67 before the Rent Controller and against PW-1 and the same was dismissed holding that PW-1 was the owner of the suit house and that there was no relationship of landlord and tenant. The 1st defendant filed Appeal in R.A. No. 538/68 and the said appeal also was dismissed. The defendant filed C.R.P. No. 1753/1970 which was also dismissed with a direction to file a civil suit for declaration of title. But however, the 1st defendant did not file a suit for declaration of title but he filed O.S. No. 351/71 for possession on the file of I Assistant Judge, Secunderabad and the suit was decreed on 31-1-1974. PW-1 filed Appeal A.S. No. 52 /74 on the file of Additional Chief Judge, Secunderabad and the said Appeal was dismissed on 18-11-1975. The PW-1 filed S.A. No. 781/75 on the file of Supreme Court and the same was dismissed on 28-6-1977. Then he filed SLP No. 3012/77 before the Apex Court praying for permission and the Apex Court granted permission and granted stay, but ultimately dismissed the Appeal. The 1st defendant filed E.P. No. 67/80 for delivery of possession for executing the said decree. On 22-7-1980 delivery was ordered by issuing the warrant. On 30-7-1980 the bailiff came to PW-1''s house along with warrant at about 9 A.M. PW-1 then pleaded to the 1st defendant to receive money and convey the suit house to him. At that time Annam Manikya Rao, P.L.Gajapathi Rao, Advocate, Karika Balrajiah, Marripalli Pandari, J.P.Nageswara Rao, retired Deputy Director of Agriculture, A.P., C.Malleshwara Rao, B.N. Venkatarao, Railway Officer, V.N.Pandurangam and Chilka Rajeswar Rao were present at the request of PW-1. PW-1 sent for them through his children. The 1st defendant demanded Rs. 35,000/- and PW-1 agreed for the said amount. The defendant then wanted to consult his mother Annamma and all of them went away. The 1st defendant came again on that day in the evening and demanded Rs. 75,000/- . The bailiff was in the process of removing the articles from the suit house. Then two of the sons of PW-1 called the abovesaid persons and they came there. Then Annam Manikya Rao suggested a figure of Rs. 40,000/- but the 1st defendant did not agree for it. The said Manikya Rao ultimately settled that PW-1 should pay Rs. 50,000/-. PW-1 agreed for the said amount and the defendant also agreed to receive Rs. 50,000/- and reconvey the suit house to PW-1. It as about 5 P.M. then. The execution of the warrant was stopped then. There was a big iron safe in the suit house wherein household articles were kept. PW-1 further deposed that no time limit had been fixed for performing the contract. PW-1 further deposed that he was evicted from the suit house then but the entire house was not delivered possession to the defendant then. There is a small room 10'' x 8'' in that house having door way towards a lane and that room was not delivered possession to the 1st defendant then. Pw1''s lock was put upto that room. On 25- 8-1980 the possession of the entire house was delivered to PW-1 by the 1st defendant and until then the said lock was there to the said room. The bailiff also recorded the existence of the iron safe in his report. PW-1 further deposed that before that, on 31-7-1980 Annam Manikyarao, J.B.Nageswara Rao, Karika Balraju, Balraju, Maripalli Pandari, Malleswara Rao, Maripalli Krishna Murthy, C.Rajeswara Rao, Samma Rao and B.N. Pandurangam went to the office of Sri M.Surya Gupta, Advocate and PW-1 and his son Subodhkumar accompanied them.

His office is situate in the 1st floor of the house in the Hill Street. PW-1 stayed in the downstairs alone then as advised by Manikya Rao. They came down 10 minutes later and informed PW-1 that Annam Manikya Rao would bring the 1st defendant to his office on 1-8-1980 for executing the agreement of sale. On 1- 8-1980 at about 7 p.m. they took the 1st defendant to the office of Sri Surya Gupta along with those persons and also Sri P.L.Gajapathi Rao, Advocate. At that time also PW-1 remained downstairs alone. At about 9.30 p.m. all those persons came to PW-1 and told him that an agreement of sale was drafted and it was dictated to the stenographer as instructed by the 1st defendant who agreed for the terms and asked them to come on the next day as it was already 9.30 p.m. and as stamps were not available then. They also informed PW-1 that as per the settlement agreed the 1st defendant had to reconvey the suit house to PW-1 on receiving Rs. 50,000/- from PW-1 and that out of the said amount Rs. 25,000/- cash had to be paid as advance on 2-8-1980 and the balance had to be paid at the time of registration of the sale deed. On 2-8-1980 at about 7 p.m. PW-1 took the money of Rs. 25,000/- to the office of Sri Surya Gupta along with Maripalli Pandari, M.Krishna Murthy, C.Rajeswara Rao, C.Malleshwara Rao and K.Balraj also accompanied but Sri Surya Gupta was not available in the office then. On 3-8- 1980 PW-1, Karika Balraj, Malleswara Rao and the two sons of PW-1 Subodhkumar and Pravinkumar went to the house of the 1st defendant with cash of Rs. 25,000/-. Then Balraj told the 1st defendant that PW-1 brought Rs. 25,000/- to be paid to the 1st defendant as advance. The 1st defendant insisted for the full amount of Rs. 50,000/- to be paid. The 1st defendant also advised PW-1 that he should sell his mulgi in General Bazar as PW-1 did not have the full amount. The issue was ultimately settled that PW-1 should pay the entire amount of Rs. 50,000/- to the 1st defendant on 5-8-1980. On 5-8-1980 PW-1 took the entire amount of Rs. 50,000/- to the house of the 1st defendant at about 4 or 5 p.m. along with Karika Balraj and Annam Manikya Rao. The 1st defendant said that they should bring Linga Nagabhushanam, a partner of Ram Mohan and he would receive the amount in his presence. When PW-1 approached the said Nagabhushanam he told that he would come there after closing his shop at about 8.30 or 9 p.m. and talk to the defendant as he was alone in the shop then. PW-1 further deposed that he did not approach the 1st defendant again on that day. On 6-8-1980 during the morning time PW-1, one Dubbiah, Sammarao, Karika Balraj went to the house of the 1st defendant along with the money and offered to receive the money. The 1st defendant then said that he would inform about the settlement to his guru who is residing in Raya Kongaraviraya village near Pahadi Shariff and he would receive the money after informing him and asked Dubbaiah to approach him on 8-8-1980 along with his tax car. On 8-8-1980 Dubbaiah took his car to the 1st defendant. PW-1 did not go to him then. Dubbiah came to PW-1 on that day evening and informed PW-1 that the guru of the 1st defendant agreed for the said settlement in the presence of Konda Sivaiah also who was taken there by the 1st defendant. PW-1 further deposed that on 10-8-1980 PW-1, Annam Manikya Rao, Karika Balraj, C.Rajeswara Rao, Malleshwar Rao, Malliah, Narayana Swamy Pillay who was working as a Clerk under the 1st defendant''s father went to that village to see the said guru. The said guru advised them to pursue the settlement arrived at. The said guru never informed then that the iron safe from the suit house should be removed first and then reconveyance would be executed. PW-1 further deposed that on 11-8-1980 himself, Annam Manikya Rao and others went to the house of the 1st defendant at about 8 A.M. or 8.30 A.M. with money but the 1st defendant was not available in the house then. They went to his house almost dailywith money but could not meet him. On 25-8-1980 they went to the house of the 1st defendant and he was available in the house then. They offered Rs. 50,000/- to him and asked him to give the key and execute the document. The 1st defendant then asked to keep the cash with Karika Balaraj and he would deliver the key to PW-1. Accordingly on the same day PW-1 put the said amount of Rs. 50,000/- with Karika Balaraju and the 1st defendant delivered the key to PW-1. PW-1 then occupied the suit house immediately. PW-1 specifically deposed that it is not true to suggest that he had forcibly occupied the suit house. As the 1st defendant did not perform his part of the contract, he got issued a lawyer notice to the 1st defendant through Sri G.M.Anjiah, Advocate, demanding him to perform his part of the contract. PW-1 also deposed the details of borrowing and other aspects. He also deposed about the deposit made with the said Karike Balraju and Balraju making an entry in his account. The office copy of the notice is marked as Ex.A-1. PW-1 also got issued a layer notice issued to Sri Surya Gupta, Advocate, to deliver the draft agreement of sale either to PW-1 or to his Counsel Sri G.M.Anjiah. He could not trace the office copy of the said notice issued to Sri Surya Gupta. The said Sri Surya Gupta gave a reply notice to PW-1 which is marked as Ex.A-2, dated 20-9-1980 saying that the said draft agreement of sale was not available with him. PW-1 also got issued another notice to Sri Surya Gupta, Advocate marked as Ex.A-3 dated 12-11-1990 asking him to deliver the said draft agreement of sale without fail. PW-1 received reply from the 1st defendant which is marked as Ex.A-4 dated 22-11-1980 but the 1st defendant did not write any letter to PW-1 in reply to Ex.A-1 or prior to it. PW-1 also issued rejoinder notice to the 1st defendant through certificate of posting, the office copy of which is marked as Ex.A-5. Ex.A-6 is the certificate of posting issued by the post office. The 1st defendant filed E.A. No. 115/80 in E.P. No. 67/80 on 9-9-1980 for reissue of warrant. PW-1 contested the said E.A. The executing court permitted PW-1 to lead evidence. Sri Surya Gupta, Advocate appeared for the 1st defendant throughout. Accordingly PW-1 produced witnesses for examining them. On seeing the witnesses Sri Surya Gupta gave up his vakalath for the 1st defendant. The 1st defendant filed C.R.P. No. 834/81 challenging the order permitting PW-1 to examine the witnesses. The High Court directed PW-1 to file a regular suit for specific performance and obtain injunction. Then PW-1 filed the suit for specific performance and also prayed for injunction in the court of the IV Additional Judge, City Civil Court, Hyderabad but injunction was not granted. The executing court redelivered the warrant. Since PW-1 was dispossessed from the suit premises he had been living in the rented house in Chilkalguda. PW-1 further deposed that the 1st defendant had not delivered the iron safe till now, but the iron safe was broken into pieces and it was found outside. The sons of PW-1 witnessed the same. PW-1 was not present then. The said iron safe will cost Rs. 40,000/- then. The market value of the suit house is about Rs. 5 lakhs. Hence PW-1 prayed for a decree granting specific performance of the suit house and also for possession. In the cross-examination, PW-1 admitted that he was not present inside the house of Sri Surya Gupta when the talks were going on. PW-1 also deposed about the subsequent modification relating to the instalments. He also deposed that it is not true to suggest that the 1st defendant never agreed to sell the suit property to him but he made an attempt to fight upto the Supreme Court level and he was not prepared for any negotiations but no body came forward for this purpose. Several questions were posed to this witness about his relationship and intimacy with the other mediators who are said to have accompanied him. PW-1 also deposed that Gajapathi Rao had not come on his own accord. PW-1 sent his son to bring him on 1-8-1980. PW-1 did not enter the house of Sri M.Surya Gupta, Advocate, but he was standing in the ground floor waiting for a call. At the request of Sri Surya Gupta PW-1 sent for the 1st defendant and he came to the office of Sri Surya Gupta. PW-1 does not know what talks had transpired in the office of Sri Surya Gupta. Relating to the visit to guru also several questions were put to this witness. No doubt PW-1 deposed that it is not true to say that the said guru of the 1st defendant never advised the 1st defendant to sell the house or suit property. It is not true to say that on 25-8-1980 the 1st defendant never delivered the possession of the house to him and that he forcibly and highhandedly broke open the lock and took possession of the suit house. PW-1 also was cross-examined as to what happened in the Supreme Court. PW-1 also deposed that it is not true to say that Ex.A-5 was never issued by him and it was fabricated for the purpose of the suit. PW-1 further deposed that it is not true to say that Ex.A-4 was not issued on 26-8- 1980 on which date the same was purposely but it was actually issued only on 30- 8-1980. Several other suggestions put to this witness also had been specifically denied. This is the evidence of PW-1 available on record. No doubt the evidence of PW-2, PW-3 and PW-4 also is available on record and these witnesses upto some extent support the version of PW-1.

Before taking up the evidence of PW-2, it may be appropriate to have a look at the relevant portions of the pleadings i.e., paras 4, 5 and 6 of the plaint and the said portions read as hereunder:

On 16th July 1980, the defendant herein along with his mother Smt. Annamma filed E.P. No. 67/80 praying for delivery of possession of the suit premises under Order 21 Rule 35 C.P.C. without notice to the plaintiff. A warrant of delivery of possession was given to the bailiff of the Court of the 1st Assistant Judge, City Civil Court, Secunderabad on 22nd day of July 1980 returnable by 2nd August 1980. On 30th July 1980 under panchanama of that date the plaintiff herein was evicted and possession of the suit premises along with big iron safe (Tijori) was entrusted to the defendant herein by the said bailiff and two receipts were obtained from the defendant who endorsed full satisfaction of the said decree. On the 1st day of August 1980, the said bailiff submitted a report enclosing the said two receipts recording full satisfaction of the decree by the Decree Holder i.e., the defendant herein. On the 2nd day of August 1980, as the Presiding Judge i.e., I Asst. Judge was on leave, the delivery of full satisfaction of the decree could not be recorded in spite of the bailiff''s report, panchanama and the said two receipts filed in the Court of the I Asst. Judge, City Civil Court, Secunderabad and thus the E.P. stood adjourned to the 9th September 1980.

It is pertinent to mention here that the defendant herein by concealing the fact of co-parcenary ownership of the plaintiff''s sons brought on 30-7-1980, an eviction warrant in E.P. No. 67 of 1980 in O.S. No. 351 of 1971 on the file of I Asst. Judge, City Civil Court, Secunderabad for evicting the plaintiff from the house No. 3-3-659, Rangrez Bazar, Secunderabad-3, along with the bailiff and process server of Secunderabad Court sanse filing partition suit against the three sons of the plaintiff viz., N.Subodh Kumar, N.Vinod Kumar and N.Praveen Kumar, inasmuch as the said sons of the plaintiff have legal and statutory right to continue to own and possess the said house. At that time, at the said house of the plaintiff gathered and assembled the following persons :

Sri P.L.Gajapathi Rao, Avocate, Sri Annam Manikya Rao, Gold & Silver merchant, Sri J.P.Nageshwar Rao, a Retired Deputy Director of Agriculture, A.P. Government, Sri C.Malleshar Rao, staff of State Bank of Hyderabad, Sri Marike Balraj, Gold & Silver merchant, Sri Maripalli Pandarinath, Gold & Silver merchant, Sri C.Rajeshwar Rao, Gold & Silver merchant, Sri B.L. Venkat Rao, a retired Railway Officer and Sri B.N. Pandurangam, Accountant, S.C. Railway, Secunderabad, and before the said persons, the plaintiff offered and agreed to pay the defendant a sum of Rs. 25,000/- in full and final settlement of the decree in E.P. No. 67/80 in O.S. No. 351/71 on the file of I Asst. Judge, City Civil Court, Secunderabad, subject to the condition that the defendant should execute reconveyance deed or sale deed in favour of the plaintiff herein. Of course the defendant was reluctant to reconvey the said house to the plaintiff in the beginning for Rs. 25,000/- but the defendant demanded a sum of Rs. 35,000/- at that time for getting the said house reconveyed in the name of the plaintiff. Accordingly, the plaintiff agreed to pay the defendant a sum of Rs. 35,000/- as demanded by the defendant.

In the evening on the even day i.e., 30th July 1980 the defendant became greedy and demanded a sum of Rs. 75,000/- from the plaintiff for reconveying the said house in favour of the plaintiff. Then Mr. Annam Manikya Rao advised the defendant herein that it was not possible for the plaintiff to pay a sum of Rs. 75,000/- as demanded by the defendant, but the plaintiff could pay a sum of Rs. 40,000/- towards reconveyance sale of the said house. After consulting each other, the elderly persons mentioned supra, advised the defendant to receive the sum of Rs. 50,000/- from the plaintiff herein for reconveying the said house in favour of the plaintiff. The plaintiff agreed for the said amount of Rs. 50,000/- and the defendant also agreed to receive the said amount in full and final settlement for reconveying the said house in favour of the plaintiff. In view of the said oral agreement-cum-promise arrived at on the advice of the aforementioned persons on 30-7-1980, the defendant left the Iron safe (Tijori) and the household archieves and articles of the plaintiff belonging to the plaintiff in the said house.

In the light of this stand taken in the pleadings, the other evidence, apart from the evidence of PW-1 also may have to be appreciated.

PW-2 deposed that he was a practicing Advocate at Secunderabad since 1934 and PW-1 is a social worker and a popular figure in Secunderabad. PW-2 further deposed that on 13-7-1980 at about 9 A.M. PW-1''s son Subodh Kumar came to his office and told him that the 1st defendant brought a warrant to evict PW- 1 from the suit house situate at Rangrez Bazar, Secunderabad and requested PW-2 to intervene in his personal capacity as he knew them and further requested PW-2 to bring about some settlement and prevent eviction. Immediately PW-2 went to the suit premises. He found the 1st defendant along with the court bailiff at the suit premises. PW-1 was present. Some neighbours also gathered. PW-2 talked to the 1st defendant and tried to persuade the 1st defendant to accept Rs. 25,000/- in full settlement and assist from executing the warrant as the 1st defendant did not agree for that amount. PW-2 suggested to receive Rs. 37,500/-. The 1st defendant was not agreeable for the said proposal. The 1st defendant gave intimation to accept Rs. 50,000/- in full settlement. This witness PW-2 added that the dispute arose on account of the transaction of sale and reconveyance. PW-2 further deposed that as the 1st defendant did not agree he came away. Two days later i.e., on 1-8-1980 Subodh Kumar came and told him that in the morning PW-1 and the 1st defendant mutually agreed for the sale consideration of Rs. 50,000/- in full settlement and that the plaintiff arranged for payment of the amount and that the agreement of sale was going to be drafted by the Advocate Sri Surya Gupta at his office on the same day at 6 p.m. and at 6 p.m. on the same day PW-2 went to the office of Sri Surya Gupta. PW-2 found PW- 1, the 1st defendant and some other friends of PW-1 there. PW-2 talked to Sri Surya Gupta and also asked him to help him thrashing out of the transaction. Sri Surya Gupta also was sympathetic and to help PW-1. PW-2 further deposed that in his presence the 1st defendant agreed to receive Rs. 50,000/- in full satisfaction and Sri Surya Gupta dictated the agreement of sale to his clerk who wrote to his dictation in the presence of PW-2 and immediately typed the draft. The draft was read out by Sri Surya Gupta. The parties agreed for the recitals in the draft. The parties and Sri Surya Gupta told that the agreement will be prepared on the next day as the stamp paper was not available immediately. PW-2 came away by 6.30 p.m. Several questions were put to this witness and he deposed that he gave an affidavit in I.A. No. 846/81 in the suit and he does not remember if he filed a petition in E.A. No. 83 in E.P. No. 87/80 on behalf of the sons of the plaintiff under Order 21 Rule 100 CPC. He does not know whether the plaintiff also filed a petition for stay of execution. He does not remember whether the whether the suit was dismissed and that he filed C.R.P. on behalf of the plaintiff. He did not appear in the High Court and that he might have filed vakalath in C.R.P. No. 2835/85. PW-2 further deposed that he did not draft the petition. Ex.B-1 is a copy of the petition in C.R.P. served on him by the opposite party. It contains his address as the Counsel in C.R.P. petition. He further deposed that he knows the plaintiff since last 30 years. He denied the suggestion that the plaintiff is his family friend and that he also helps him in doing some works on rents. In the affidavit he stated that he had suggested the figure of Rs. 35,000/- and in the evidence he stated as Rs. 37,500/-. He gave the said figure approximately. He further deposed that it is not true to say that he was taken into the house of the plaintiff by the son of the plaintiff with a view to scare the bailiff as he is an Advocate. PW-2 further deposed that it is not true to say that the 1st defendant fell on his feet and requested him not to interfere and that on his request he went back. PW-2 also denied that he negotiated in the matter and that he is deposing falsely. PW-2 further deposed that it is not true to say that when he visited the office of Sri Surya Gupta no agreement was drafted and the defendants refused to enter into any agreement with the plaintiff. He also denied the suggestion that at that time the 1st defendant clearly stated that as the plaintiff took the matter to the Supreme Court he was prepared to sell away the property to anybody except the plaintiff. PW-2 also further deposed that it is not true to say that as others did not come forward to purchase the property, all of them disbursed. He deposed that he cannot tell the names of the persons who were present on the second occasion at the office of Sri Surya Gupta. The other suggestions also had been denied. This is the crucial evidence of PW-2 which had been strongly relied upon by the Counsel representing the appellant.

The evidence of PW-1 and the evidence of PW-2 and the stand taken in paras 4, 5 and 6 of the plaint which had been already specified supra, if carefully examined, there appears to be no consistency. Be that as it may, no doubt it had been contended that these are all small discrepancies by virtue of which the whole episode cannot be disbelieved.

Now coming to the evidence of PW-3 - Manikyam, this witness no doubt deposed about the settlement made at Rs. 50,000/- and PW-1 agreeing to pay Rs. 25,000/- and the balance at the time of registration of the document and how at the time of settlement these parties were present. PW-3 also deposed about the other witnesses and the episode at the office of Sri Surya Gupta, Advocate. This witness was cross-examined and the suggestions put this witness no doubt had been denied.

PW-4 is Balraj who deposed that he is a business man and further deposed about the reaching the house of PW-1 and Annam Manikya Rao (PW-2), Gajapathi Rao, Advocate, the 1st defendant and two or three others being present and the talks and the settlement to receive an amount of Rs. 50,000/- from PW-1 in full satisfaction of the decree. This witness also deposed about the episode in the office of Sri Surya Gupta and several suggestions put to this witness no doubt had been specifically denied.

Apart from the evidence of PW-2, the evidence of PW-3 and PW-4, the respectable persons in the locality had been heavily relied upon by the Counsel for the appellant to substantiate his stand that the oral agreement as set up by PW-1 to be believed and the relief of specific performance to be granted.

As against this evidence on appellant/plaintiff''s side, the evidence of DW-1 and DW-2 is available on record. As already referred to supra, several of the contentions now being advanced in the light of the different provisions of the Transfer of Property Act and also the Indian Evidence Act and several decisions relied upon by the Counsel for appellant referred to above need not detain this Court any longer for the reason that by virtue of the decree made in the suit for eviction which had attained finality, by virtue of dismissal of the SLP by the Apex Court, the said findings which had already attained finality cannot be reopened and again such contentions cannot be permitted to be advanced by the Counsel for appellant. Suffice to state that an attempt is made by the Counsel for the appellant to convince this Court again on these points which had attained finality in the prior round of litigations referred to above.

Now coming to the evidence of DW-1/1st defendant, he deposed that the suit house originally belonged to the plaintiff''s grand father Narra Venkanna and after the death of Venkanna his sons Narra Ganesh and Narra Ramaswamy succeeded to the said property and other properties of their father Venkanna and thereafter in a partition between the said brothers the suit house fell to the share of Narra Ganesh who is the father of the plaintiff. Thereafter in the year 1938 the plaintiff and his father Narra Ganesh sold the suit house to one T.Babaiah with an agreement for reconveyance. They could not repay the consideration amount and could not obtain reconveyance deed from the said Babaiah. Then T.Babaiah, the plaintiff''s father and the plaintiff together executed a sale deed conveying the suit property in favour of the father of the 1st defendant Lakshmaiah in the year 1943. At the time of the said sale, the plaintiff and his father were in actual possession of the suit house. So both of them executed a rental agreement in favour of the father of the 1st defendant agreeing to pay rent at the rate of Rs. 22.50 (H.S.) per month and after some years the said monthly rent was raised to Rs. 28.00 (H.S.) with the consent of the plaintiff and his father and after some years the rent was raised toRs.40.00 (H.S.) per month with the consent of both of them but they were not paying the rent regularly from the beginning. DW-1 also deposed that he filed eviction case before the Rent Controller, Secunderabad. The plaintiff had taken the plea that there is no relationship of landlord and tenant and the case had been dismissed holding that there is no landlord and tenant relationship. Subsequently they filed appeal R.A. No. 538/68 against the said Judgment and the same also was dismissed. They filed Revision before the High Court and the same was dismissed at the stage of admission. However, the suit filed by them was decreed whereupon the appeal filed by the plaintiff A.S. No. 52/74 was dismissed and the second appeal S.A. No. 781/75 also was dismissed. The SLP filed also was dismissed on 15-1-1980. Thereafter the 1st defendant/DW-1 filed E.P. No. 67/80 and the said petition was allowed and warrant was issued which as executed on 30-7-1980. All the articles belonging to the plaintiff were removed except one steel almirah which could not be removed as it was bigger than the door. The bailiff wanted to obtain necessary direction from the court for breaking the door of the building for removing the almirah or for breaking the almirah itself to take it out. The bailiff obtained two receipts from the 1st defendant - one for almirah and the other for the house. At the time of execution of the warrant the friends and relatives of the plaintiff fathered and requested the 1st defendant not to execute the warrant and that the 1st defendant/DW-1 should resell the property to the plaintiff to which DW-1 did not agree to the said proposal. DW-1 also deposed that two days thereafter the persons who gathered at the time of execution of the warrant went to Sri Surya Gupta, Advocate and requested him to ask DW-1 to sell the suit house to the plaintiff. Sri Surya Gupta, Advocate called DW-1 and told him about the said incident in the presence of the elders present. At that time the plaintiff also was present at the said building in the ground floor and he did not come up to the office of Sri Surya Gupta situate in the first floor. DW-1 further deposed that PW-4 was not present at the suit house at the time of execution and also at the office of Sri Surya Gupta at the said time. The elders offered Rs. 50,000/- to be paid as the price of the suit house out of which half will be paid immediately and the other half within one month''s time at the time of registration of the sale deed. DW-1 did not agree for that proposal for the reason that the plaintiff dragged DW-1 upto the Supreme Court and therefore he was not willing to sell the suit house to the plaintiff and if any outsider was prepared to pourchase the same, DW-1 would consult his elders and take a decision in that connection. At the same time, DW-1 asked the elders present whether any of them was willing to purchase the suit house and they told him that they were not interested. DW-1 also deposed that Sri P.L.Gajapathi Rao, Advocate suggested to Sri M.Surya Gupta, Advocate to keep the skeleton agreement ready and when the parties agree to the terms it could be filled up without delay. Sri Surya Gupta agreed to do so. However as it was 9 p.m. then the matter ended there and every one left. Thereafter no one approached Sri M.Surya Gupta, Advocate in connection with that matter. DW-1 further deposed that on that day i.e., on 1-8-1990 no draft agreement was prepared at the office of Sri Surya Gupta. Thereafter the mediators on behalf of the plaintiff approached DW- 1 several times and threatened and pressurized him to agree for the sale of the property to the plaintiff but DW-1 did not agree. The said mediators also approached the guru of DW-1 at Kongara Raverala village and requested him to persuade DW-1 to agree for the said sale but DW-1''s guru never advised DW-1 to agree for that sale. DW-1 also further deposed that on 26th and 27th August 1980 the plaintiff along with others viz., Maripalli Pandari came to his house in Monda Market and threatened him saying that they would kill if DW-1 did not agree for that sale. Thereupon DW-1 gave a complaint to the Police in that connection. Thereafter the plaintiff got issued a legal notice dt.26-8-1980 to DW-1 and DW-1 received it on 3-9-1980. In the said legal notice the plaintiff alleged that DW-1 agreed to sell the suit house to the plaintiff for Rs. 50,000/- and that he kept that amount with one Karike Balaraju (PW-4) and that DW-1 delivered possession of the suit property to the plaintiff on 25-8-1980. All the said allegations had been denied by DW-1 as false and further stated that he never delivered possession of the property to the plaintiff. The plaintiff broke open the locks and occupied the suit premises. On 4-9-1980, DW-1 gave police complaint against the plaintiff in the said connection. DW-1 also filed a petition in E.A. No. 15/80 in E.P. No. 67/80 on 9-9-1980 for redelivery of possession to him. Thereafter the plaintiff got issued a notice to Sri M.Surya Gupta, Advocate requesting him to produce the alleged draft agreement for inspection by his Advocate Sri G.M. Anjiah. At that time the mother of DW-1 was seriously ill and she died in October 1980 and due to the said reason DW-1 could not give replies to the plaintiff''s notice and only in the month of November 1980 Sri Surya Gupta gavea reply to Sri G.M. Anjiah to the aforesaid notice stating that there was no draft agreement at all. DW-1 further deposed that in E.A. No. 115/80 the learned I Assistant Judge at first wanted to go into the question of the existence of the alleged agreement of sale. Against that order DW-1 preferred Revision to the High Court and it was ordered that only the question of redelivery of possession and issue of warrant should be gone into. Thereafter E.A. No. 115/80 was allowed and redelivery was ordered. Against the said order, the plaintiff preferred C.R.P. No. 522/82 and it was dismissed at the admission stage. DW-1 deposed that he never agreed to sell the suit house to the plaintiff for a sum of Rs. 50,000/-. He also deposed about Ex.B-1, the original partition deed dated 28-4-1938, Ex.B-2 - registered sale deed dated 9- 5-1938, Ex.B-3 - sale deed dated 19-8-1983, Ex.B-4 rental agreement. This witness, DW-1, also deposed about Exs.B-4, B-5, B-6, B-7,B-8, B-9, B-10, B-11, B-12, B-13, B-14, B-15, B-16, B-17, B-18, B-19 to B-22, B-23, B-24, B-25, B-26, B-27, B-28, B-29, B-30 and B-31 as well. These are all series of litigations. In the cross-examination of DW-1, again there was an attempt to put several suggestions relating to the aspect whether it is to be treated as a mortgage or a sale. No doubt these suggestions had been specifically denied. Further, several suggestions were put to DW-1 about the settlement arrived at before the mediators and the episode of Sri Surya Gupta''s office. This witness explained by giving cogent reasons and denied the suggestions put to him specifically taking the self-same stand which he had asserted in the chief-examination.

Apart from the evidence of DW-1, the evidence of DW-2 also is available on record. This witness Sri Surya Gupta, Advocate, deposed that he was a practicing Advocate at Secunderabad courts at the relevant point of time and he appeared as Advocate in the eviction proceedings. DW-2 also deposed about the execution. This witness no doubt deposed that several people including P.L.Gajapathi Rao came to his office to persuade the 1st defendant to agree for selling the suit property to the plaintiff but he refused to sell the property to the plaintiff. He further deposed that the plaintiff never appeared in his office much less on that day in that connection. On 1-8-180 what all happened in his office was mentioned in the reply notice Ex.A-2 addressed to Sri G.M. Anjaiah, Advocate in reply to a letter sent by him. All the other aspects had been specifically denied by DW-2. In the cross-examination, no doubt this witness denied certain suggestions and the filing of vakalath and he was cross- examined on the other aspects also. This witness no doubt deposed that in Ex.B- 33 it was alleged that he prepared the draft agreement and that the agreement was concluded and read out to the parties present andthat it was approved and so he gave the reply in Ex.A-2 denying the allegations and also stating out the circumstances. DW-2 deposed that he does not remember whether he filed vakalath in the suit or not. He told the 1st defendant that in view of the recitals in Ex.B-33 and the plaint he cannot appear for the 1st defendant. On seeing the proceeding sheet dt.27-1-1981 in the main suit the witness says that Sri V.V.L. Narasimha Rao, Advocate filed vakalath for the 1st defendant. DW-2 further deposed that it is false to say that he refused to file vakalath for the 1st defendant because he did not accept his advise and that all the allegations in Ex.B-33 are true.

The Counsel representing the appellant made elaborate submissions as well commenting on the nature of the evidence of DW-2 to the effect that DW-2 had given such evidence having given up the vakalath and having been aggrieved of certain comments made by Sri G.M. Anjaiah i.e., certain of the purgative statements made by Sri G.M. Anjaiah. No doubt, it had been argued that it is unfortunate that Sri G.M.Anjaiah made certain uncharitable remarks and it may be that such comments had been made by Sri G.M. Anjaiah even without the knowledge of PW-1 and by that having developed some prejudice a Senior Advocate of the stature of DW-2 had deposed in such a fashion and equal importance to be given to the evidence of PW-2 as well since PW-2 also was a Senior Counsel and merely because certain suggestions were put to PW-2 relating to his interestedness by that itself the evidence of PW-2 cannot be discredited in view of the evidence of PW-3 and PW-4 as well. In nutshell, this is the substance of the litigation and elaborate submissions were made on the strength of the evidence of PW-2 and DW-2, the two respectable senior Advocates of the Secunderabad Bar at the relevant point of time who are no more in this world.

It is no doubt true that on a careful analysis of the evidence available on record there is some evidence to show that series of attempts had been made to have some amicable settlement between PW-1 and DW-1 and the question is whether DW-1 was a consenting party and if all the circumstances if to be carefully examined, can it be said that there was a concluded contract between the parties and whether both these parties were consenting parties and whether there was consensus ad idem between the parties in arriving at the alleged oral settlement which in fact had been drafted and it is stated that the said draft agreement had not been delivered by Sri M.Surya Gupta, Advocate, for certain reasons. Even if this version to be taken to be true, whether on the strength of oral and documentary evidence available on record, whether the findings recorded by the trial Court to be disturbed or to be confirmed in the peculiar facts and circumstances is the question. This Court is conscious of the fact that this Court is appreciating the oral evidence of two respectable persons - Sri Gajapathi Rao (PW-2) and also Sri M.Surya Gupta (DW-2). In all fairness, both the Senior Counsel Sri K.R.Narasimham, the Counsel representing the appellant and also Sri Bala Gopal, another good old Senior Counsel, both of them in all fairness agreed that both these Advocates who are no more in this world, were respectable and Senior members of the Secunderabad Bar. There cannot be any doubt whatsoever relating to the fact that there was some attempt on the part of the mediators who approached DW-1 and also the guru of DW-1 to have some settlement between the parties. There cannot be two opinions about this aspect, but the reluctance on the part of DW-1 for settlement is clear and categorical in his evidence, the grievances ventilated by DW-1 being very clear. It is no doubt probable that a person under the threat of eviction in his anxiety might have made attempts by sending his sons, by gathering mediators, by requesting Sri M.Surya Gupta, Advocate, also to see that a settlement is arrived at. Equally Sri Gajapathi Rao who is having soft corner towards the plaintiff, might have advised Sri M.Surya Gupta to see that his good office also be used for the purpose of having amicable settlement. It is pertinent to note that this unfortunate 1st defendant initially fought the litigation on the rent control side and had been unsuccessful on the question of denial of very relationship of landlord and tenant. By virtue of a direction the said 1st defendant again filed a suit for eviction and having been successful, the plaintiff did not leave him and the plaintiff unsuccessfully fought the litigation upto the Supreme Court. While putting the decree into execution also the 1st defendant was put into lot of trouble as can be seen from the resistance and the several proceedings. The explanation given why the iron safe could not be removed by DW-1 is convincing. It is pertinent to note that the guru of the 1st defendant/DW-1 was not examined. The bailiff also was not examined to substantiate the stand taken by PW-1. It may be that an explanation is forthcoming that the guru may be interested in DW-1 and hence the guru may not figure as a witness.

Be that as it may, this is a case of specific performance where the relief is being prayed for on the strength of an oral agreement. Several circumstances would point out that there were some consultations and the stand taken by PW-1 is that it was concluded at a specific sum of Rs. 50,000/- and there is some evidence to show that after coming back, a demand of Rs. 75,0000/- also had been made by DW-1. So the mere fact that there was some mediation for settlement by that itself it cannot be taken that the contract is a concluded contract which can be enforced in a Court of law. The evidence relating to voluntary delivery as asserted by PW-1 and forcible entry by PW-1 as asserted by DW-1 would clearly go to show that this alleged concluded contract cannot be sustained. Further, the grievance of DW-1 that he was prepared to sell the property to anyone else except to PW-1 is clear and categorical and assertive in the evidence of DW-1. It is but natural that the DW-1 was not willing to part with the property in favour of PW-1 who had taken him upto Supreme Court. This grievance is but natural. The subsequent police complaints and the bad blood between the parties also would in a way support the version of DW-1. Hence, in the light of these probabilities, even if the evidence of PW-2 to be taken into consideration, in a way the evidence of PW-2 is in consonance with the stand taken by DW-2. This Court is inclined to believe the version of PW-2 and DW-2, the two respectable members of Secunderabad Bar. Even if this evidence to be believed, in the light of some inconsistencies and contradictions in the evidence of PW-3 and PW-4 recorded by the trial Court, such well recorded findings of the trial Court not to be disturbed in this Appeal. It may be that these purchasers pendente lite are brought on record. Apart from this aspect of the matter, certain of the legal representatives of the 1st defendant who were brought on record even before the original court, they are not on record since the same was dismissed for default as already specified above. Hence, viewed from any angle, this Court is thoroughly satisfied that the findings recorded by the trial Court cannot be found fault. Accordingly the said findings are hereby confirmed.

Point No. 2: In the result, the C.C.C.A. being devoid of merit, the same shall stand dismissed. However, in the light of the peculiar facts and circumstances, especially the evidence of PW-2 and DW-2, since there was some attempt relating to settlement, this Court is inclined to direct the parties to bear their own costs.