Holding

In the absence of proof of a valid, subsisting agreement, execution, earnest‑money payment and possession, specific performance cannot be granted and the appeals are dismissed.

Summary

Lakshmi Sreenivasa Cooperative Building Society filed suits for specific performance of alleged sale agreements of land against Puvvada Rama (deceased) and others. The trial court dismissed the suits, finding the Society failed to prove execution of the agreements, payment of earnest money, and possession, noting the agreements were unregistered and no relinquishment deeds were produced. The High Court affirmed these findings. On appeal under Article 136, the Supreme Court held that without proof of a valid, subsisting agreement and the requisite factual foundations, specific performance cannot be granted, and the Society is not entitled to a refund of earnest money. The Court also ruled that concurrent adverse findings of lower courts do not bar its jurisdiction under Article 136. Consequently, both appeals were dismissed with costs.

Issues considered

Whether specific performance can be granted when the plaintiff fails to prove execution of the sale agreements.
Whether the lack of registration and relinquishment deeds renders the agreements unenforceable.
Whether the plaintiff is entitled to a refund of earnest money in the absence of proof of its payment.
Whether concurrent findings of fact by lower courts preclude the Supreme Court's exercise of jurisdiction under Article 136 of the Constitution.
Whether the second appeal (Civil Appeal No.6625 of 2008) is maintainable.

Legislation cited

Subjects

specific performancesale agreementexecution of contractearnest moneypossessionregistrationUrban Land Ceiling ActArticle 136Supreme Courtcivil appealevidentiary burden

Judgment

1232 [2018]REPORTS
SUPREME COURT 7 S.C.R. 1232 [2018] 7 S.C.R.

A LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY
v.
PUVVADA RAMA (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 6620 of 2008)
B JULY 31, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Specific performance: Agreement of sale of land – Suit for
C specific performance of sale agreement in respect of land – On
facts, suit for specific performance of sale agreement filed by
appellant-society – Dismissed by the courts below since the
appellant failed to prove execution of the suit agreement, payment
of earnest money in furtherance of those agreements and also
being put in possession of the suit property – On appeal, held:
D Execution of suit agreement was not proved – Appellant cannot be
permitted to take the relief sans proof of execution of suit
agreements in respect of which the relief of specific performance is
sought – There was absence of a valid and subsisting agreement
operating between the parties – Neither of the agreement was a
E registered document – No relinquishment deed has been executed
by vendees who were party to the alleged initial agreement –
Furthermore, appellant failed to prove the factum of possession –
In view thereof, no relief can be granted to the appellant – As
regards prayer sought by the appellant for refund the earnest money
paid to them in furtherance of the suit agreements, ordinarily it
F could be considered but in the peculiar facts of the instant case, it
may not be possible to entertain the same.

Constitution of India: Art. 136 – Exercise of jurisdiction
under – Concurrent finding of fact recorded by the courts below
G against appellant – Held: Merely because two courts have taken a
particular view on the material issues, that by itself would not
operate as a fetter on this Court to exercise jurisdiction
u/Art.136.

H
1232
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1233
v. PUVVADA RAMA (D) BY LRS.

Dismissing the appeals, the Court A
HELD: 1. It is incomprehensible as to how the order passed
by the High Court disposing of the first appeal without any
adjudication can, by any standard, be considered as adverse to
the defendant either in the matter of final decree or any finding
recorded by the trial court whilst dismissing the suit. As a result, B
Civil Appeal No.6625 of 2008 is devoid of merit, and is not
maintainable. [Para 12] [1240-D]
2.1 In Civil Appeal No.6620 of 2008, the High Court has
affirmed the findings of facts and the conclusion recorded by the
trial court on material issues against the appellant/plaintiff. In C
that sense, the subject appeal questions the concurrent finding
of fact recorded by the two Courts against the appellant/plaintiff.
Merely because two courts have taken a particular view on the
material issues, that by itself would not operate as a fetter on this
Court to exercise jurisdiction under Article 136 of the
Constitution. [Para 13] [1240-E-F] D

2.2 The adverse findings recorded by the two courts below
against the appellant/plaintiff is based on the indisputable facts,
such as neither were the attestors and scribe to the suit
agreements examined to prove execution thereof by the real
owners of the property nor was any explanation or justification E
forthcoming for such failure. The suit agreements are
unregistered. The defendants have denied having signed any such
agreement. No attempt was made by the appellant/plaintiff to
confront the defendants and discharge the burden by examining
any handwriting expert. The appellant/plaintiff failed to produce F
any document to show that the nine members in whose favour
the initial alleged agreement was executed, have relinquished
their possession in favour of the appellant/plaintiff. The co-owner
of the property (5th defendant) was neither joined as party in the
suit agreement, nor was his authority for execution of such
agreement forthcoming. The other two purchasers, along with G
whom the suit agreement was executed, were also not
examined. No proof was forthcoming regarding payment of
earnest money amount at the time of execution of the suit
agreements or otherwise made to the owners of the suit
H
1234 SUPREME COURT REPORTS [2018] 7 S.C.R.

A property. The appellant/plaintiff did not file any document to show
that the cheque was encashed and availed by defendant No.4 as
payment in respect of the suit agreement. No endorsement was
taken on the initial suit agreement, either of the vendors or
vendee before or at any time after execution of the second suit
agreement. The sole testimony of PW-1 regarding execution of
B
the suit agreement was not enough to prove its execution. No
witness was examined to prove that there was any bargain and
settlement between PW-1 and defendant Nos.1-4 in respect of
the sale transaction prior to execution of suit agreement. There
is no recital in the suit agreement to the effect that along with
C defendant Nos.1-4, defendant No.5 had also agreed to sell the
property and to execute the sale deed in favour of the appellant/
plaintiff. There was no signature of defendant No.5 on the suit
agreements or any reference to her, much less that she agreed
to join with defendant Nos.1-4 for sale of the suit property. The
suit agreements are executed by the first defendant alone and
D
not by all the co-owners. The trial court, no doubt, did not accept
the plea of defendant No.1 being of unsound mind. But the High
Court, on analysis of the relevant evidence, accepted the
evidence as sufficient in that regard. [Para 14] [1242-E-G;
1243-A-D]
E 2.3 The trial court made exhaustive analysis of evidence
on record in the context of the material issue regarding
execution of the suit agreements and answered against the
appellant/plaintiff. That finding of the trial court commended to
the High Court. The view so taken by the trial court is certainly
F a possible view and by no stretch of imagination can the finding
recorded by the courts below on the material issue against the
appellant be said to be manifestly unreasonable and unjust in the
context of the evidence on record. [Para 15, 16] [1243-E;
1246-G]
2.4 The appellant/plaintiff cannot be permitted to take the
G
relief claimed in the suit any further sans proof of execution of
suit agreements in respect of which the relief of specific
performance is sought. The appellant/plaintiff must fail in getting
any relief whatsoever in the absence of a valid and subsisting
agreement operating between the parties in relation to which
H relief of specific performance can be granted. Notably, neither of
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1235
v. PUVVADA RAMA (D) BY LRS.

the agreement is a registered document. No relinquishment deed A
has been executed by the nine vendees who were party to the
alleged initial agreement. No endorsement was forthcoming in
that regard. If so, the second agreement must stand or fail on its
own. But before the execution of the second suit agreement in
favour of the appellant/plaintiff, the suit property was purported
B
to be transferred in terms of the agreement dated
22 nd November, 1979 in favour of respondent No.6 (original
defendant No.6). During the pendency of the proceedings before
the High Court between the parties, a registered sale deed was
executed in respect of the suit property in favour of respondent
No.6 (defendant No.6) by the owners of the suit property. As a C
result of the registered sale deed, the heirs and legal
representatives of original defendant No.6 claim to have become
the owners and in possession of the suit property. [Para 17]
[1246-G; 1247-A-E]
2.5 As regards the factum of possession, the trial court found D
that the appellant failed to prove the same. The view so taken by
the trial court that the appellant failed to prove the factum of
possession commended to the High Court and has been affirmed
by it. There is no reason to deviate from the said conclusion as it
is not manifestly unreasonable or unjust in the context of the
evidence on record. [Para 18, 19] [1247-F; 1249-E] E

2.6 The conclusion arrived at by both the courts below that
the suit filed by the appellant/plaintiff deserves to be dismissed
is upheld. In the course of arguments, it was submitted by the
appellant that if the court was not inclined to grant the prayer for
specific performance, then this court may direct the respondents F
to refund the earnest money paid to them in furtherance of the
suit agreements. Ordinarily, such a prayer could be considered
but in the peculiar facts of the instant case, it may not be possible
to entertain the same, not only because no such express prayer
is sought in the plaint filed by the appellant/plaintiff before the G
trial court, but also because accepting that prayer would result in
taking a contradictory approach with the finding of the trial court
and affirmed by the High Court and this Court, that the appellant
had failed to prove the factum of payment of earnest money amount
to the owners of the suit property. In view thereof, no relief can
be granted to the appellant. [Para 20] [1249-F, G; 1250-A] H
1236 SUPREME COURT REPORTS [2018] 7 S.C.R.

A Smt. Indira Kaur & Ors. v. Sheo Lal Kapoor (1988) 2
SCC 488 - referred to.
Case Law Reference
(1988) 2 SCC 488 referred to Para 13
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6620
B of 2008.
From the Judgment and Order dated 13.03.2006 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in A.S. No. 1492 of
1997
WITH
C
Civil Appeal No.6625 of 2008.
Mohan Parasaran, M.N. Rao, Sr. Advs., G.V.R. Choudary,
K. Shivraj Choudhuri, A. Chandra Sekhar, Sanjay Jha, C. Balakrishna,
M. A. Chinnasamy, Ms. C. Rubavathi, Advs. for the appearing parties.
D The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1.These appeals arise out two
separate suits filed for specific performance of agreements of sale in
respect of land admeasuring Ac. 7.86 cents (3.18 hectares) in Survey
No.59/2, situated in Kundavari Khandrika Village within the Sub Registry
E of Vijayawada.
2. The original respondent No.6, namely, Allu Appalanarayana,
had filed a suit for specific performance before the Court of
Subordinate Judge, Vijayawada, being Original Suit No.99/1981 for
specific performance of the agreement dated 22nd November, 1979
F executed in his favour by Puvvada Chandrashekhara Rao and Puvvada
Siva Prasad, which was dismissed by the Trial Court on 20th October,
1997. Civil Appeal No.6625 of 2008 emanates from the said
proceedings.
3. The appellant Society (appellant in both the appeals before this
Court) had also filed a suit in respect of the self-same land for specific
G performance of the agreement of sale dated 16th October, 1981 read
with the earlier agreement dated 30th June, 1977. Even this suit filed
before the Subordinate Judge at Vijayawada, being O.S. No.351 of
1982 was dismissed by the Trial Court by common judgment dated
20th October, 1997. Civil Appeal No.6620 of 2008 arises from the said
H proceedings.
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1237
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

4. The legal representatives of original respondent No.6 preferred A
a first appeal before the High Court of Judicature, Andhra Pradesh at
Hyderabad, being First Appeal No.1426 of 1997 against the dismissal of
O.S. No.99/1981. Similarly, the appellant Society preferred First Appeal
No.1492/1997 before the High Court of Judicature, Andhra Pradesh at
Hyderabad, against dismissal of its suit, being O.S. No.351/1982.
B
5. The appeal preferred by the heirs and legal representatives of
Allu Appalanarayana, however, was disposed of on 9th March, 2006 in
view of the submissions made by the counsel for the appellant therein
that respondent Nos.1 & 2/defendant Nos.1 & 2, Puvvada
Chandrashekhara Rao and Puvvada Siva Prasad, respectively, had
already executed a sale deed in respect of the suit property in their C
favour and, therefore, no further order was necessary in the pending
appeal. The High Court disposed of the said appeal on that basis. Against
that decision, as mentioned above, Civil Appeal No.6625 of 2008 has
been filed by the appellant Society. It is doubtful whether this appeal
preferred by the appellant against the decision of the High Court dated D
9th March, 2006 in First Appeal No.1426/1997 can be taken forward.
We shall elaborate on this a little later.
6. The real controversy that needs to be addressed is in reference
to the suit filed by the appellant Society, being O.S. No.351/1982 for
specific performance of the contract of sale dated 16th October, 1981 E
read with the earlier contract dated 30th June, 1977, directing defendant
Nos.1 to 5 (owners of the suit property), who are respondent Nos.1 to 5
in Civil Appeal No.6620/2008, to register a proper sale deed in favour of
the appellant Society on receiving the balance of sale consideration at
the time of registration or, in the alternative, directing execution and
registration of such sale deed by the Court at their expense, and for F
permanent injunction restraining the 6th defendant (respondent Nos.6a.
to 6g. - legal representatives) from interfering with the suit property and
plaintiff’s (appellant’s) possession and enjoyment thereof in any way.
The defendants contested the said suit and denied having executed the
suit agreements dated 30th June 1977 and 16th October, 1981. G
7. On the basis of the pleadings, the Trial Court framed relevant
issues and upon considering the oral and documentary evidence
produced by the appellant/plaintiff, answered the material issues against
the appellant/plaintiff. The Trial Court opined that the appellant/plaintiff
had failed to prove the execution of the suit agreements. Similarly, the H
1238 SUPREME COURT REPORTS [2018] 7 S.C.R.

A appellant/plaintiff had failed to prove that earnest money was paid to
the owners of the land at the time of execution of the suit agreements or
otherwise. Even on the factum of possession, as claimed by the
appellant/plaintiff, the Trial Court opined that the appellant/plaintiff had
failed to prove delivery of possession of the suit property to it by the
owners upon execution of the suit agreement dated 30th June, 1977.
B
The Trial Court further opined that the alleged suit agreements could not
have been executed in view of the bar contained in the Urban Land
Ceiling Act and even for that reason, the same were not valid. Having
answered the material issues against the appellant/plaintiff, the suit filed
by the appellant being O.S. No.351/1982, was eventually dismissed with
C costs. Against the said decision, the appellant preferred A.S.
No.1492/1997 before the High Court of Judicature, Andhra Pradesh at
Hyderabad. The High Court was pleased to uphold the finding of fact
recorded by the Trial Court against the appellant/plaintiff on the material
issues. In that sense, both the courts have concurrently opined that the
appellant/plaintiff failed to prove execution of the suit agreements dated
D
30th June, 1977 and 16th October, 1981 or of having paid earnest money
in furtherance of those agreements and also being put in possession of
the suit property, as claimed. At the same time, the High Court departed
from the finding recorded by the Trial Court with regard to the issue as
to whether defendant No.1 was a person of unsound mind. The High
E Court found that there was sufficient evidence to accept the said plea
urged by defendant No.1. The High Court, therefore, dismissed the
appeal preferred by the appellant Society and confirmed the order of
dismissal of suit passed by the Trial Court.
8. The appellant has assailed the dismissal of its suit and appeal
F by the High Court by way of Special Leave to Appeal (Civil) No.16661
of 2006, which has been converted into Civil Appeal No.6620 of 2008.
The thrust of the challenge is that the Trial Court as well as the High
Court committed manifest error in analysing and appreciating the
evidence on record in respect of material issues regarding execution of
suit agreements, payment of earnest money to the owners at the time of
G execution thereof and including the factum of appellant/plaintiff having
been put in possession of the suit property. It is urged that the crucial
aspect as to the steps taken by the appellant for and on behalf of the
owners for converting the land user and seeking permission of the

H
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1239
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

appropriate authority for transfer of the land in favour of the appellant A
Society, has been overlooked. Those circumstances would reinforce
the execution of the suit agreements in favour of the appellant. The
appellant has also assailed the finding reached by the High Court on the
factum of defendant No.1 being of unsound mind. It is urged that
adverse inference ought to have been drawn under Section 114 of the
B
Indian Evidence Act, as defendant No.1 was not examined. The
appellant would further contend that it was always ready and willing to
perform its part of the contract and for which reason the Court ought to
have decreed the suit filed by the appellant. It is contended that the
appellant Society has acted upon the suit agreements and has made
substantial investment on the suit property because it was put in C
possession thereof. The equities are in favour of the appellant for which
reason the Court should lean in favour of granting decree of specific
performance, as prayed.
9. The respondents, on the other hand, would contend that the
Court should be loath in interfering with the concurrent findings of fact D
on material issues recorded by the two Courts against the appellant/
plaintiff. Significantly, the Courts have held that the appellant failed to
prove execution of the suit agreements. On that finding, the question of
considering any other matter to further the relief of specific performance,
would be an exercise in futility. Besides, both the Courts have held that
there was express prohibition for execution of suit agreements under E
the Urban Land Ceiling Act. The respondents submit that the Trial Court
has rightly dismissed the suit filed by the appellant/plaintiff and, for the
same reason, the High Court is justified in dismissing the first appeal
preferred by the appellant. Resultantly, the present appeal preferred
against the concurrent decisions ought to be dismissed. F
10. As regards the companion Civil Appeal No.6625 of 2008, it is
urged that the same is completely ill-advised inasmuch as it arises out of
the suit instituted by the original respondent No.1 (respondent Nos.1a.
to 1g. - legal representatives) for specific performance of agreement in
his favour dated 22nd November, 1979. That suit came to be dismissed G
by the common judgment and order dated 20th October, 1997 passed by
the Trial Court, against which respondent Nos.1a. to 1g. had filed First
Appeal No.1426 of 1997. That appeal was not pursued any further in
view of the subsequent developments. It necessarily follows that there

H
1240 SUPREME COURT REPORTS [2018] 7 S.C.R.

A was no adverse decree or for that matter, any finding recorded against
the appellant herein (defendant in the said suit) to which the appellant
can take exception, much less by way of special leave petition. The fact
that during the pendency of the first appeal, a registered sale deed was
executed in favour of the appellant in First Appeal No.1426/1997
cannot be the basis to maintain an appeal under Article 136 of the
B
Constitution. Hence, such appeal is devoid of merits.
11. We have heard Mr. Mohan Parasaran, learned senior counsel
appearing on behalf of the appellant Society and Mr. M.N. Rao, learned
senior counsel appearing on behalf of the respondents.
C 12. We shall take the last argument of the respondents, relating to
maintainability of Civil Appeal No.6625 of 2008, first. We find substance
in that argument. It is incomprehensible as to how the order passed by
the High Court disposing of the first appeal without any adjudication
can, by any standard, be considered as adverse to the defendant either
in the matter of final decree or any finding recorded by the Trial Court in
D O.S. No.99/1981 whilst dismissing the suit. As a result, Civil Appeal
No.6625 of 2008 deserves to be dismissed as being devoid of merit, and
in particular, as not maintainable.
13. Reverting to the former appeal, i.e. Civil Appeal No.6620 of
2008, the High Court has affirmed the findings of facts and the
E conclusion recorded by the Trial Court on material issues against the
appellant/plaintiff. In that sense, the subject appeal questions the
concurrent finding of fact recorded by the two Courts against the
appellant/plaintiff. We are conscious of the fact that merely because
two Courts have taken a particular view on the material issues, that by
F itself would not operate as a fetter on this Court to exercise jurisdiction
under Article 136 of the Constitution. This Court in the case of
Smt. Indira Kaur and Ors. Vs. Sheo Lal Kapoor,1 has observed as
follows:
“7. ……… Article 136 of the Constitution of India does not forge
G any such fetters expressly. It does not oblige this Court to fold its
hands and become a helpless spectator even when this Court
perceives that a manifest injustice has been occasioned. If and
when the court is satisfied that great injustice has been done it is

1
(1988) 2 SCC 488
H
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1241
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

not only the “right” but also the “duty” of this Court to reverse the A
error and the injustice and to upset the finding notwithstanding the
fact that it has been affirmed thrice. There is no warrant to import
the concept or the conclusiveness of divorce on the utterance of
“Talaq” thrice in interpreting the scope of the jurisdiction of this
Court under Article 136. It is not the number of times that a finding
B
has been reiterated that matters. What really matters is whether
the finding is manifestly an unreasonable, and unjust one in
the context of evidence on record. It is no doubt true that this
Court will unlock the door opening into the area of facts only
sparingly and only when injustice is perceived to have been
perpetuated. But in any view of the matter there is no jurisdictional C
lock which cannot be opened in the face of grave injustice. This
view has been taken in Variety Emporium v. Mohd. Ibrahim
Naina to which one of us (Thakkar, J.) was a party. The relevant
passage in the words of Chandrachud, C.J. may be quoted with
advantage: (SCC p. 255, para 6)
D
“It cannot be overlooked that three courts have held concurrently
in this case that the respondent has proved that he requires the
suit premises bona fide for his personal need. Such concurrence
undoubtedly, has relevance on the question whether this Court
should exercise its jurisdiction under Article 136 of the Constitution
to review a particular decision. That jurisdiction has to be E
exercised sparingly. But, that cannot possibly mean that
injustice must be perpetuated because it has been done three
times in a case. The burden of showing that a concurrent
decision of two or more courts or tribunals is manifestly unjust
lies on the appellant. But once that burden is discharged, it is F
not only the right but the duty of this Court to remedy the
injustice. Shri Tarkunde, who appears for the respondent, argued
that this may lead and, in practice, does lead to different standards
being applied by different courts to find out whether a concurrent
decision is patently illegal or unjust. That, in the present dispensation,
is inevitable. Quantitatively, the Supreme Court has a vast G
jurisdiction which extends over matters as far apart as Excise to
Elections and Constitution to Crimes. The court sits in benches
and not en banc, as the American Supreme Court does. Indeed,

H
1242 SUPREME COURT REPORTS [2018] 7 S.C.R.

A even if the entire court were to sit to hear every one of the eighty
thousand matters which have been filed this year, a certain amount
of individuality in the response to injustice cannot be avoided. It is
a well known fact of constitutional history, even in countries where
the whole court sits to hear every case, that the composition of
majorities is not static. It changes from subject to subject though,
B
perhaps, not from case to case. Personal responses to injustice
are not esoteric. Indeed, they furnish refreshing assurance
of close and careful attention which the Judges give to the
cases which come before them. We do not believe that the
litigating public will prefer a computerised system of
C administration of justice: only, that the Chancellor’s foot must
tread warily.”
(emphasis supplied)
14. Applying the principle expounded in the aforementioned
decision, we must enquire into whether the finding recorded by the two
D Courts below is manifestly unreasonable and unjust in the context of the
evidence on record. What seems to us is that the adverse findings
recorded by the two Courts below against the appellant/plaintiff is based
on the indisputable facts, such as neither were the attestors and scribe
to the suit agreements examined to prove execution thereof by the real
E owners of the property nor was any explanation or justification
forthcoming for such failure. The suit agreements are unregistered. The
defendants have denied having signed any such agreement. No attempt
was made by the appellant/plaintiff to confront the defendants and
discharge the burden by examining any handwriting expert. The
appellant/plaintiff failed to produce any document to show that the nine
F members in whose favour the initial alleged agreement dated 30th June,
1977 was executed, have relinquished their possession in favour of the
appellant/plaintiff. The co-owner of the property (5th defendant) was
neither joined as party in the suit agreement dated 16th October, 1981,
nor was his authority for execution of such agreement forthcoming. The
G other two purchasers, along with whom the suit agreement was
executed, were also not examined. No proof was forthcoming
regarding payment of earnest money amount at the time of execution of
the suit agreements or otherwise made to the owners of the suit
property. The appellant/plaintiff did not file any document to show that

H
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1243
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

the cheque was encashed and availed by defendant No.4 as payment in A
respect of the suit agreement. No endorsement was taken on the suit
agreement dated 30th June, 1977 (Exhibit A1), either of the vendors or
vendee before or at any time after execution of the suit agreement dated
16th October, 1981 (Exhibit A2). The sole testimony of PW-1 regarding
execution of the suit agreement was not enough to prove its execution.
B
No witness was examined to prove that there was any bargain and
settlement between PW-1 and defendant Nos.1-4 in respect of the sale
transaction prior to execution of suit agreement Exhibit A1. There is no
recital in the suit agreement to the effect that along with defendant Nos.1-
4, defendant No.5 had also agreed to sell the property and to execute
the sale deed in favour of the appellant/plaintiff. There was no signature C
of defendant No.5 on the suit agreements or any reference to her, much
less that she agreed to join with defendant Nos.1-4 for sale of the suit
property. The suit agreements are executed by the first defendant alone
and not by all the co-owners. The Trial Court, no doubt, did not accept
the plea of defendant No.1 being of unsound mind. But the High Court,
D
on analysis of the relevant evidence, has accepted the evidence as
sufficient in that regard.
15. The Trial Court has made exhaustive analysis of evidence on
record in the context of the material issue regarding execution of the suit
agreements and answered against the appellant/plaintiff, as can be
discerned from paragraphs 27 to 29 of its judgment which read thus: E

“27) To prove the execution of Ex.A.1 defendant 1 to 4 and its
runuinances the plaintiff did not examine the attestors and scribe
of it. There is no explanation from the plaintiff for non examining
the attestors of it. The plaintiff did not examine the scribe of it as
he is no more and his son P.W.2 came and deposed the same and F
also identified the writings of his father. Except identifying the
writings and signature of the scribe, the evidence of D.W.2 is not
helpful to prove its execution and signatures of defendant 1 to 4
on Ex.A.1. As such the evidence of P.W.2 is not much helpful to
prove the sale of the suit land and execution of Ex.A1 by G
respondent 1 to 4. Defendants 2, 3, and 4 who examined as D.W.2,
D.W.3 and D.W.1 respectively denied their signatures on Ex.A.1
and also their execution of it in favour of P.W.1. No doubt, the
first defendant did not came into witness box on the ground that

H
1244 SUPREME COURT REPORTS [2018] 7 S.C.R.

A he became mad or insane. It is the case of the plaintiff that
defendant 1 to 4 sold the plaint schedule land to his and executed
Ex.A.1 in his favour of receiving a part of sale consideration from
him. In such circumstances non examination of first defendant
does not give any adverse inference in proving Ex.A.1, as the
other defendants i.e., defendant 2 to 4 examined to confront their
B
signatures or Ex.A.1 and execution of it along with defendant 1.
Similarly the non examination of first defendant, does not
automatically prove the execution of Ex.A.1 without examining
the attesters and scribe thereupon. The evidence of P.W.1 else
goes to show that he occurred the attestor and they are not the
C men of defendants to attribute any motive to them. The plaintiff
also did not examine any of the other 2 purchasers along with
when we purchased and obtained Ex.A.1 to prove the execution
of Ex.A.1 and signatures of defendants 1 and 4 agreeing to sell
the suit schedule land and receiving of Rs.45,000/- from them.
Thus the sale testimony of P.W.1, without examining the
D
attestes, and his co-purchasers is not at all helpful to prove
the sale of the suit schedule land and execution of Ex.A.1
by defendant 1 to 4 infavour of P.W.1 on 30.7.1977. As such
the plaintiff failed to prove execution of sale of the plaint
schedule land under Ex.A.1 by defendant 1 to 4.
E 28) Coming to the subsequent development it is the case of the
plaintiff that the defendants 1 to 4 also executed Ex.A2 contract
of sale dt. 16.10.1981 infavour of the plaintiff society basing on
earlier sale agreement Ex.A1 and the same conditions of Ex.A.1
have been adopted Ex.A2 agreement. PW.1 deposed that Ex.A.2
F agreement was prepared in Navayuga Hotel at Vijayawada. One
Gudivada Durga Rao and M. Satyanarayana are the attestors in
Ex.A.2. He does not know where Durga Rao resides but he used
to come to Vijayawada from Tadepally side. Satyanarayana is
resident of Atta Ramayya Street in Governorpata, Vijayawada.
He himself took both the attestors to Navayuga Hotel. He himself
G got Ex.A2 typed but he does not remember who gave the matter
for typing. No rough draft was prepared before getting Ex.A.2
typed.

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LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1245
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

Except the evidence of P.W.1, there is no other evidence of A
attestors to prove Ex.A.2. There is no explanation from the plaintiff
for non examination of the attestors. Further the attestors are his
men and he got them and obtained their signatures on Ex.A.2. By
the date of execution of Ex.A.2, dt.16.10.1981, the suit in
O.S.No.99/81 was already filed against defendants 2 to 4, by
B
defendant 6 herein. The defendants 1 to 4 also disputed their
signatures on Ex.A.2 and also its execution infavour of the plaintiff
society. The plaintiff society did not obtain any relinquishment
deed of 8 other purchasers under Ex.A.1 to obtain subsequent
agreement Ex.A.2 in the name of society. Similarly there is no
endorsement on Ex.A.1 either of vendors or vendees about it C
cancellation in view of subsequent agreement Ex.A.2 infavour of
society. In view of the above circumstances and without any
evidence from the attestors, the sole testimony of P.W.1 is not at
all helpful to prove the execution of Ex.A.2 by defendant 1 to 4 on
16.10.1981 in Navayuga hotel at Vijayawada. The plaintiff filed
D
a petition to reopen the matter and also permit his to lead rebuttal
evidence but the defendant did not allow him to examine the
attestors is also not a satisfactory explanation. Admittedly there
was no memo reserving his right to lead rebuttal. Without examining
the attestors during the course of examination of this witness,
when the matter is coming up for argument, after closing the E
evidence of defendant, the plaintiff filing a petition to reopen the
matter to examine his witnesses or attestors is not at all a justified
ground to blame the defendants. As such for non examining
the attestors of Ex.A.1 and Ex.A.2 is not the fault of
defendants as it is the duty of plaintiff to examine them in
F
time. When it is the case the burden is on the plaintiff to
prove the execution of Ex.A.1 and Ex.A.2 without examining
the attestors and scribe of it blaming the defendants that
they did not allow him to examining them at later stage by
reopening the matter is of no use to satisfy the requirements
in proving a document. Thus the plaintiff failed to prove G
the execution of Ex.A.W by defendant 1 to 4 prove the
execution of Ex.A.2 by defendant 1 to 4 infavour of the
plaintiff society in terms of earlier agreement Ex.A.1.

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1246 SUPREME COURT REPORTS [2018] 7 S.C.R.

A 29) It is the case of the plaintiff that defendant 5 agreed to sell the
property along with defendant 1 to 4. Though the defendants 5
did not join in execution of sale agreement she had agreed to sell
and also agreed to join in execution of sale deed. P.W.1 sale deposed
that 10 or 15 days prior to Ex.A.1, he bargained with the vendors
and settled the transaction. But the plaintiff did not adduce any
B
evidence to prove that defendant 5 agreed to sell and also agreed
to join in execution of sale deed and none of the witnesses are
examined to prove that there was any bargain and settlement
between P.W.1 and defendant 1 to 4 in respect of the sale
transaction and also understanding between them prior to Ex.A.1.
C Further in Ex.A.1 and Ex.A.2 there is no recital to the effect that
defendant 1 to 4 along with defendant 5 to the effect that defendant
1 to 4 along with defendant 5 agreed to execute the Regd. Sale
deed. There circumstances also shows that defendant 5 did not
agreed to sell the property and she did not agree to execute sale
deed infavour of plaintiff. There is a gap of more than 4 years
D
between Ex.A.1 and Ex.A.2. Not only Ex.A.1 but also Ex.A.2
does not bear the signature and reference of defendant 5 that she
agreed to join with defendant 1 to 4 for sale of the suit schedule
property. The plaintiff also failed to explain whey they did not
obtain the signature of defendant 5 attestor on Ex.A.2 to say that
E she was aware and gave consent of this agreement and earlier
agreement of Ex.A.1. If defendant 5 is aware and the plaintiff
obtained any consent or at least intimation to defendant 5, they
would have obtained the signature of defendant on Ex.A.2 – which
came into existence after more than 4 years of Ex.A.1. In such
circumstances the agreement Ex.A.1. and Ex.A.2 does not bind
F
on defendant 5 as she is neither party nor it was with her consent
and willing, such sale transaction took place.”
(emphasis supplied)
16. That finding of the Trial Court commended to the High Court.
G The view so taken by the Trial Court is certainly a possible view and by
no stretch of imagination can the finding recorded by the two Courts
below on the material issue against the appellant be said to be manifestly
unreasonable and unjust in the context of the evidence on record.

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LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1247
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

17. Having said this, it must necessarily follow that the appellant/ A
plaintiff cannot be permitted to take the relief claimed in the suit any
further sans proof of execution of suit agreements in respect of which
the relief of specific performance is sought. All other issues would
recede in the background. It is, therefore, not necessary for us to dilate
on the other issues, such as legal bar with regard to execution of such
B
agreements and the effect thereof. The appellant/plaintiff must fail in
getting any relief whatsoever in the absence of a valid and subsisting
agreement operating between the parties in relation to which relief of
specific performance can be granted. Notably, neither the agreement
dated 30th June, 1977 nor the agreement dated 16th October, 1981 is a
registered document. As observed earlier, no relinquishment deed has C
been executed by the nine vendees who were party to the alleged initial
agreement dated 30th June, 1977. No endorsement was forthcoming in
that regard. If so, the agreement dated 16th October, 1981 must stand or
fail on its own. But before the execution of the second suit agreement
dated 16th October, 1981 in favour of the appellant/plaintiff, the suit
D
property was purported to be transferred in terms of the agreement
dated 22nd November, 1979 in favour of respondent No.6 (original
defendant No.6). During the pendency of the proceedings before the
High Court between the parties, a registered sale deed was executed in
respect of the suit property in favour of respondent No.6 (defendant
No.6) by the owners of the suit property. As a result of the registered E
sale deed, the heirs and legal representatives of original defendant No.6
claim to have become the owners and in possession of the suit
property.
18. As regards the factum of possession, the Trial Court found
that the appellant failed to prove the same and while answering issue F
No.5, it observed as follows:
“33. Issue No.5: it is the case of the plaintiff that the defendants 1
to 4 delivered possession of the plaint schedule property on the
date of sale under Ex.A.1 date 30.06.1977 in favour of the
purchasers and subsequently they have delivered the same to the G
plaintiff society on the date of execution of Ex.a.2 dated
16.10.1981 and since then they have been in possession and
enjoyment of the plaint schedule property. The defendants denied

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1248 SUPREME COURT REPORTS [2018] 7 S.C.R.

A the delivery of possession to the plaintiff and their continuing over
the name as on the date of filing of the suit. P.W.1 deposed that
the Gram Panchayat approved layout which is Ex.A.7. Survey
stones were painted for the plots and pipes were also arranged
for the roads as per the layout and roads were formed. P.W.1
denied the 6th defendant took possession of the suit schedule
B
property under Ex.A.1 in O.S. No.99/81 and he had been in
possession of the same. P.W.1 deposed that the suit land is an
agriculture land and he had seen copy of account No.2 available
in the Urban Ceiling Authority Officer mentioning the name of
the other defendants as enjoyers of the suit land. The village
C karnam informed him that the suit schedule property stands in the
name of the first defendant alone. P.W.1 admitted that he did not
pay any cist for the suits land from 30.6.1977 to 16.10.1981.
Subsequently he paid cist, but by then the other suit O.S.
No.99/81 was also filed. He denied that they are not in
possession or the suit land till he obtain interim injunction order
D
and that he came into possession of the suit land only in
pursuance of the injunction orders. The defendants from the
beginning even before filing of the suit, by way of reply notice
they have denied the sale transaction in favour of the plaintiff and
also delivery of possession. The plaintiff did not file any
E document i.e. revenue records or cist receipts to show that he
paid any taxes and to say that he was in possession of the plaint
schedule property right from the date of Ex.a.1 i.e. from 30.6.1977
till he filed this suit in the year 1982. It is the case of the plaintiff
that he along with 8 others purchased the property under Ex.a.1
and subsequently they all formed into a Society of the plaintiff
F
and obtained another subsequent agreement from the defendants
1 to 5 under Ex.A.2 dated 16.10.1981 under Ex.A.2. But the
plaintiff did not examine any of his co-purchasers to prove
delivery of possession of the plaint schedule property to them by
the defendants. Except the sale testimony of P.W.1, there is no
G other evidence to say that the defendants delivered possession to
them on 30.6.1977 under Ex.a.1. If there was any such delivery
of possession on 30.6.1977 and they have continued such
possession and enjoyment over the plaint schedule property till

H
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY 1249
v. PUVVADA RAMA (D) BY LRS. [A. M. KHANWILKAR, J.]

the date of filing of the suit in the year 1982 they would have paid A
at least cist to the Revenue authorities and obtained receipts and
also examined the other co-purchaser of P.W.1. In the absence
of any such evidence, the version of the plaintiff that the
defendants 1 to 4 delivered possession of the plaint schedule
property to him and his other 8 purchasers on 30.6.1977 and they
B
subsequently delivered it to the Plaintiff Society on 16.10.1981
under Ex.A.2 and also to say that they have been continuing in
possession and enjoyment of the plaint schedule property is not at
all be liable version. The obtaining of layout permission from the
Gram Panchayat under Ex.A.7 and also writ petition and its
proceedings questioning acquisition of the plaint schedule land by C
the plaintiff under Exs.A.17 to A.21 are not at all helpful to say
possession and enjoyment of the plaintiff over the plaint schedule
lands. Similarly the evidence of D.Ws.1 to 7 is also not helpful to
say the possession and enjoyment of the plaintiffs over the plaint
schedule property and also delivery of possession by the
D
defendants 1 to 4 on 30.6.1977 under Ex.A.1. Hence, this issue is
decided against the plaintiff.”
19. The view so taken by the Trial Court commended to the High
Court and has been affirmed by it. We find no reason to deviate from
the said conclusion as it is not manifestly unreasonable or unjust in the
context of the evidence on record. E

20. Considering the above, we have no hesitation in upholding the
conclusion arrived at by both the Courts below that the suit filed by the
appellant/plaintiff deserves to be dismissed with costs. In the course of
arguments, it was earnestly urged on behalf of the appellant before us
that if the Court was not inclined to grant the prayer for specific F
performance, then this Court may direct the respondents to refund the
earnest money paid to them in furtherance of the suit agreements.
Ordinarily, such a prayer could be considered but in the peculiar facts of
the present case, it may not be possible to entertain the same, not only
because no such express prayer is sought in the plaint filed by the G
appellant/plaintiff before the Trial Court, but also because accepting that
prayer would result in taking a contradictory approach with the finding
of the Trial Court and affirmed by the High Court and by us, that the

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1250 SUPREME COURT REPORTS [2018] 7 S.C.R.

A appellant/plaintiff had failed to prove the factum of payment of earnest
money amount to the owners of the suit property. Notably, the factum of
execution of the suit agreements in itself is doubted. In view of the
above, no relief can be granted to the appellant/plaintiff in the fact
situation of this case.
B 21. We accordingly dismiss both the appeals with costs.

Nidhi Jain Appeals dismissed.

C

D

E

F

G

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