PROPERTY LAWS‎ > ‎

NO-INJUNCTION - WHEN THE AGREEMENT OF SALE BY HUSBAND OF DEFENDANT NO.1 IS A CREATED ONE, WHEN THE PROPERTY STANDS IN THE NAME OF WIFE - DEFENDANT NO.1 LACK OF POSSESSION OF PLAINTIFF.

posted 28 Feb 2012 17:47 by murali mohan Mandagaddi

THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL No.1390 of 2011

Dated:23.12.2011

Between:

Nelapudi Kondayya.

 

…Appellant

 

and

 

Pechetti Sumathi,

And another.

 

…Respondents

 

  
THE HON’BLE SRI JUSTICE V.V.S.RAO

SECOND APPEAL No.1390 of 2011

 

JUDGMENT:

 

          The plaintiff is the appellant.  His suit, being O.S.No.294 of 1988 on the file of the Court of the II Additional District Munsif, Amalapuram, for permanent injunction was dismissed on 31.01.1992.  He then approached the Court of the Senior Civil Judge, Amalapuram, by filing A.S.No.18 of 1992.  The same was also dismissed on 26.02.1998, aggrieved by which, the instant Second Appeal is filed.

          The plaintiff alleged that he purchased the suit schedule property from one Chandra Rao, the husband of the first defendant, under an agreement of sale dated 19.02.1979 after paying entire sale consideration in installments. The payment was endorsed on the agreement; he took delivery of the possession, but could not get the sale deed executed by Chandra Rao.  After his death his legal representatives, defendant Nos.1 and 2, did not execute the sale deed and tried to interfere with his possession.  The suit was opposed by the defendants.  They denied execution of agreement by the husband of first defendant late Chandra Rao in favour of the plaintiff.  First defendant claimed title over the property alleging that she purchased the same under registered sale deed dated 04.06.1974.  She also denied the possession of the plaintiff and asserted that she is in exclusive possession of the property from the date of purchase under the sale deed.

          The trial Court framed two issues.  Plaintiff examined four witnesses and marked seven documents (P.Ws.1 to 4 and Exs.A1 to A7).  Defendant examined three witnesses and marked three documents (D.Ws.1 to 3 and Exs.B1 to B3).  After considering the oral and documentary evidence, the trial Court dismissed the suit observing that Ex.A1 - agreement of sale, and Exs.A2 to A7 - endorsements thereon, failed to prove plaintiff’s case.  The trial Court also held that the property was purchased by the first defendant under Ex.B2 sale deed, and therefore, the plaintiff cannot be said to have been in possession.  The trial Court also found that when the property was purchased by the first defendant, the agreement executed by her husband Chandra Rao had no validity when he had no title to the property.  The appellate Court again reconsidered the evidence and came to the same conclusion relying on Ex.B2 - sale deed.

          In this appeal the Counsel for the appellant submits that the courts below failed to appreciate evidence of P.Ws.1 to 4 and Ex.A1 - agreement of sale.  He, however, does not dispute or deny that Ex.A2 - sale deed stands in the name of the first defendant.  From this it follows that even if Ex.A1 is true, Chandra Rao, having no title, would not have sold the property which was exclusively owned and possessed by the first defendant who deposed as D.W.1 and her evidence remained unimpeached. The question of fact which weighed with the Courts below does not warrant any second appeal.

          The Second Appeal is, therefore, dismissed.  There shall be no order as to costs.

 

 

_______________

(V.V.S.RAO, J)

 

23.12.2011

vs

 

 

Comments

M.MURALI MOHAN