APHC010209262022

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3397]

MONDAY,THE FIFTEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA

KRISHNA RAO

SECOND APPEAL NO: 205/2022

Between:

Smt. Sammeta Venkata Ramana ...APPELLANT

AND

Sammeta China Venkata Narayana ...RESPONDENT

Counsel for the Appellant:

1. NARASIMHA RAO GUDISEVA

Counsel for the Respondent:

1. T LAKSHMI PADMAJA

The Court made the following:

Reserved on 06.05.2026

Pronounced on 15.06.2026

Uploaded on 15.06.2026

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

I.A.No.3 of 2026

IN/AND

SECOND APPEAL No. 205 of 2022

JUDGMENT:

This second appeal is filed aggrieved against the judgment and decree

dated 23.02.2022 in A.S.No.68 of 2016 on the file of the I Additional District

Judge, Krishna at Machilipatnam, confirming the judgment and decree dated

01.03.2016 in O.S.No.211 of 2007 on the file of the Principal Senior Civil

Judge at Machilipatnam.

2. The appellant herein is the defendant and the respondent herein is the

plaintiff in O.S.No.211 of 2007 on the file of the Principal Senior Civil Judge at

Machilipatnam.

3. The plaintiff initiated action in O.S.No.211 of 2007 on the file of the

Principal Senior Civil Judge at Machilipatnam, with a prayer for the relief of

specific performance of the agreement of sale dated 28.08.2006 directing the

defendant to execute a registered sale deed in favour of the plaintiff in respect

of the suit schedule property within the time fixed by the Court after receiving

the balance of sale consideration or for grant of the alternative relief for

payment of Rs.35,000/- with interest @ 12% per annum from the date of

agreement till the date of realization and for costs of the suit.

4. The learned Principal Senior Civil Judge at Machilipatnam, decreed the suit

with costs against the defendant directing him to execute a registered sale

VGKR, J.

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S.A.No.205 of 2022

deed in favour of the plaintiff in respect of the schedule property in terms of

the agreement of sale dated 28.08.2006, after receipt of the balance of

consideration, at his expenses within a period of two months and on her

failure the plaintiff is at liberty to get such sale deed executed in the manner

known to law and directed the plaintiff to pay the balance of sale consideration

of Rs.1,15,000/- within two months. Felt aggrieved of the same, the

unsuccessful defendant in the above said suit filed the aforesaid appeal suit

before the first appellate Court. The learned I Additional District Judge,

Krishna at Machilipatnam, dismissed the first appeal with costs by confirming

the judgment and decree passed by the trial Court. Aggrieved thereby, the

unsuccessful defendant/appellant approached this Court by way of second

appeal.

5. For the sake of convenience, both parties in the second appeal will be

referred to as they are arrayed in the original suit.

6. The case of the plaintiff, in brief, as set out in the plaint averments in

O.S.No.211 of 2007, is as follows:

I. The plaintiff pleaded that the defendant is the wife of his elder brother

and that she is the absolute owner and possessor of the plaint schedule

property comprising Ac.1.24 cents of land, consisting of Ac.0.70 cents in

R.S.No.90/1 and Ac.0.54 cents in R.S.No.98/3, situated at Devarapalli

Village of Pedana Mandal. The plaintiff further pleaded that the

defendant agreed to sell an extent of Ac.1.00 cents out of the plaint

VGKR, J.

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In/And

S.A.No.205 of 2022

schedule property at the rate of Rs.1,50,000/- per acre and thereafter,

on 28.08.2006, the plaintiff and the defendant entered into an

agreement of sale and the plaintiff paid an amount of Rs.30,000/-

towards advance sale consideration and as per the terms and

conditions of the agreement, the plaintiff had to pay the balance sale

consideration on or before 27.08.2007. The plaintiff further pleaded that

on 31.08.2006, the plaintiff paid an additional amount of Rs.5,000/-

towards part sale consideration. Thereafter, since June, 2007, the

plaintiff had been requesting the defendant to execute and register the

sale deed by expressing his readiness and willingness to pay the

balance sale consideration. However, the defendant postponed the

execution of the sale deed on one pretext or the other.

II. The plaintiff further pleaded that on 18.06.2007, he got issued a legal

notice to the defendant demanding execution of the sale deed and also

deposited the balance sale consideration amount in his Savings Bank

Account No.01170061470, maintained with State Bank of India, Pedana

Branch, to demonstrate his financial readiness. The plaintiff further

pleaded that despite receipt of the said notice, the defendant neither

issued any reply nor expressed her willingness to execute the sale deed.

Therefore, the plaintiff was constrained to file the present suit seeking for relief

of specific performance of agreement of sale dated 28.08.2006 directing the

VGKR, J.

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In/And

S.A.No.205 of 2022

defendant to execute a registered sale deed in favour of the plaintiff in respect

of the suit schedule property within the time fixed by the Court after receiving

the balance of sale consideration and also for grant of alternative relief for

payment of Rs.35,000/- with interest @ 12% per annum from the date of

agreement till the date of realization and for costs of the suit.

7. The defendant filed written statement denying the contents of plaint

averments and further contended as follows:

The defendant pleaded that she denied the execution of the agreement of

sale, dated 28.08.2006, and also denied receipt of any amount towards sale

consideration thereunder. The defendant further pleaded that the plaintiff is in

the habit of grabbing lands and that disputes arose between the plaintiff and

her husband, when her husband questioned the conduct of the plaintiff. The

defendant further pleaded that the plaintiff is a member of the Nandamuru

Primary Agricultural Co-operative Society and he informed the defendant that

he had obtained a loan in her name by mortgaging the plaint schedule

property for the purpose of purchasing she-buffaloes. The defendant further

pleaded that the plaintiff obtained her thumb impressions on certain stamp

papers and with an evil intention the plaintiff fabricated the suit agreement of

sale. The defendant further pleaded that she never intended to sell the plaint

schedule property to the plaintiff and as such, she prayed for dismissal of the

suit with costs.

VGKR, J.

I.A.No.3 of 2026

In/And

S.A.No.205 of 2022

8 On the basis of above pleadings, the learned Principal Senior Civil

Judge at Machilipatnam, framed the following issues for trial:

1) Whether the agreement of sale dated 28.08.2006, is fabricated by

plaintiff as pleaded by defendant?

2) Whether the plaintiff is entitled for specific performance of contract as

prayed for?

3) To what relief?

9. During the course of trial in the trial Court, on behalf of the plaintiff,

P.Ws.1 and 2 were examined and Exs.A-1 to A-4 were marked. On behalf of

the defendant, D.Ws.1 to 3 were examined and Exs.B-1 and B-2 were

marked.

10. The learned Principal Senior Civil Judge at Machilipatnam, after

conclusion of trial, on hearing the arguments of both sides and on

consideration of oral and documentary evidence on record, decreed the suit

with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal

suit in A.S.No.68 of 2016 before the learned I Additional District Judge,

Krishna at Machilipatnam, wherein, the following points came up for

consideration:

1) Whether the plaintiff before the trial Court has proved that suit

agreement of sale dated 28.08.2006 is true, valid and executed by

defendant?

VGKR, J.

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S.A.No.205 of 2022

2) Whether the plaintiff has proved that he is ready and willing to perform

his part of the contract?

3) Whether the plaintiff has proved that he is entitled to seek specific

performance of suit agreement of sale or to the alternative relief of

refund of advance amount?

4) Whether the findings given by the trial Court are substantial and

whether there are any grounds to interfere with the judgment and

decree of the trial Court?

5) To what relief?

11. The learned I Additional District Judge, Krishna at Machilipatnam, i.e.,

the first appellate Judge, after hearing the arguments, answered the point, as

above, against the defendant/appellant and in favour of the

plaintiff/respondent and dismissed the appeal suit filed by the defendant. Felt

aggrieved of the same, the unsuccessful defendant in O.S.No.211 of 2007

filed the present second appeal before this Court.

12. On hearing both side counsels at the time of admission of the second

appeal, on 01.04.2026, this Court admitted the second appeal and framed the

following substantial questions of law:

1) Whether the Court below miserably failed in exercising the discretion

conferred upon it under Section 20 of the Specific Relief Act judiciously,

as the Appellant/Defendant proved that she neither executed nor

having intention to sell the Plaint Schedule Property, inspite of that the

VGKR, J.

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S.A.No.205 of 2022

Courts below exercised discretion in favour of the Plaintiff arbitrarily

and prejudicial to the interest of Appellant/Defendant?

2) Whether the Courts below not even invoked Section 16(c) of the

Specific Relief Act in order to test the readiness and willingness of the

plaintiff who paid a paltry sum of Rs.35,000/- out of Rs.1,50,000/- and

the balance amount was neither deposited nor filed any document

evidencing his readiness and willingness to perform his part of the

contract, even by depositing the amount in a personal account of the

Plaintiff in Bank do not serve the legal requirement ?

3) Whether the Courts below are justified in decreeing the suit, when the

Plaintiff has not chosen to examine the Attestor, even one of the

Attestor supported the case of the Defendant, as such in the light of

Section 114(g) of the Indian Evidence Act, the adverse inference has to

be drawn by the Courts below holding that the execution of Agreement

of Sale or passing of consideration under Ex.A-1 is not proved by the

Plaintiff?

13. Heard Sri Narasimha Rao Gudiseva, learned counsel appearing for the

appellant and Sri J.Ugranarasimha, learned Counsel representing

Smt. T.Lakshmi Padmaja, learned counsel appearing for the respondnet.

VGKR, J.

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14. Dealing with the scope of Section 100 of the Code of Civil Procedure,

the Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (Dead)

By Lrs

1

1 held as follows:

“34. … … … Section 100 has introduced a definite restriction on to the

exercise of jurisdiction in a second appeal so far as the High Court is

concerned. Needless to record that the Code of Civil Procedure (Amendment)

Act, 1976 introduced such an embargo for such definite objectives and since

we are not required to further probe on that score, we are not detailing out,

but the fact remains that while it is true that in a second appeal a finding of

fact, even if erroneous, will generally not be disturbed but where it is found

that the findings stand vitiated on wrong test and on the basis of assumptions

and conjectures and resultantly there is an element of perversity involved

therein, the High Court in our view will be within its jurisdiction to deal with the

issue. This is, however, only in the event such a fact is brought to light by the

High Court explicitly and the judgment should also be categorical as to the

issue of perversity vis-à-vis the concept of justice. Needless to say however,

that perversity itself is a substantial question worth adjudication — what is

required is a categorical finding on the part of the High Court as to perversity.

… … …”

15. The Apex Court in the case of Yadavarao Dajiba Shrawane v. Nanilal

Harakchand Shah (Dead) and Ors.,

2

held as follows:

“31. From the discussions in the judgment it is clear that the High Court has

based its findings on the documentary evidence placed on record and

statements made by some witnesses which can be construed as admissions

or conclusions. The position is well settled that when the judgment of the final

court of fact is based on misinterpretation of documentary evidence or on

consideration of inadmissible evidence or ignoring material evidence the High

Court in second appeal is entitled to interfere with the judgment. The position

is also well settled that admission of parties or their witnesses are relevant

pieces of evidence and should be given due weightage by courts. A finding of

1

(2001) 4 SCC 262

2

(2002) 6 SCC 404

VGKR, J.

I.A.No.3 of 2026

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S.A.No.205 of 2022

fact ignoring such admissions or concessions is vitiated in law and can be

interfered with by the High Court in second appeal. Since the parties have

been in litigating terms for several decades, the records are voluminous. The

High Court as it appears from the judgment, has discussed the documentary

evidence threadbare in the light of law relating to their admissibility and

relevance.”

16. In the case of Hero Vinoth (Minor) v. Seshammal

3

, the Apex Court

held as follows:

“19. It is not within the domain of the High Court to investigate the grounds on

which the findings were arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court should not ordinarily

reject witnesses accepted by the trial court in respect of credibility but even

where it has rejected the witnesses accepted by the trial court, the same is no

ground for interference in second appeal when it is found that the appellate

court has given satisfactory reasons for doing so. In a case where from a

given set of circumstances two inferences of fact are possible, the one drawn

by the lower appellate court will not be interfered by the High Court in second

appeal. Adopting any other approach is not permissible. The High Court will,

however, interfere where it is found that the conclusions drawn by the lower

appellate court were erroneous being contrary to the mandatory provisions of

law applicable or its settled position on the basis of pronouncements made by

the Apex Court, or was based upon inadmissible evidence or arrived at by

ignoring material evidence.” (emphasis supplied)

17. The learned counsel for appellant would contend that the execution of

Ex.A-1 agreement of sale and passing of advance sale consideration are not

at all proved by the plaintiff and the plaintiff did not choose to examine the

attestors in Ex.A-1 agreement of sale. The defendant herein is disputing the

execution of agreement of sale Ex.A-1 and also passing of advance sale

consideration under Ex.A-1, therefore, it is for the plaintiff to prove Ex.A-1

3

(2006) 5 SCC 545

VGKR, J.

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In/And

S.A.No.205 of 2022

agreement of sale. The undisputed facts are that the appellant/defendant is

the wife of the elder brother of the plaintiff and she is the absolute owner of

the plaint schedule property. The plaintiff entered into the witness box and

examined himself as P.W.1 and the original agreement of sale was exhibited

as Ex.A-1 through P.W.1. Ex.A-1 reveals that the plaintiff agreed to purchase

the plaint schedule property for Rs.1,50,000/- and he received an amount of

Rs.30,000/- towards advance sale consideration on the date of agreement of

sale and the defendant also affixed her thumb mark on the agreement of sale

and the 1

st

attestor is none other than the husband of the appellant. Ex.A-1

further reveals that on 31.08.2006, the plaintiff paid an amount of Rs.5,000/-

towards part of the remaining balance sale consideration and also obtained

endorsement under Ex.A-2 and obtained the thumb mark of the defendant and

both Ex.A-1 and Ex.A-2 were prepared by the scribe of Ex.A-1. The plaintiff

narrated in the plaint and also in his evidence about the financial capacity of

himself and the deposit of balance sale consideration in the bank account of

the plaintiff at State Bank of India, Pedana Branch, to prove his readiness and

willingness to perform his part of the contract. The plaintiff also furnished his

Bank Account Number in the plaint as well as in his evidence. It is not at all

the case of the appellant that the said account does not belong to the plaintiff.

18. To prove Ex.A-1 agreement of sale, the plaintiff also examined the

scribe of Ex.A-1 agreement as P.W.2. P.W.2 narrated in his evidence about

the preparation of Ex.A-1 agreement and his evidence proved the execution of

Ex.A-1 agreement of sale and passing of advance sale consideration of an

VGKR, J.

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amount of Rs.30,000/- on the date of Ex.A-1 agreement of sale and also

payment of another amount of Rs.5,000/- on 31.08.2006 under Ex.A-2

endorsement and he is the scribe of Ex.A-1 and Ex.A-2. It is not the case of

the appellant that she has enmity with the scribe and the plaintiff and that they

deposed falsehood against her. The defendant admits that she has no

disputes with the plaintiff. The evidence of P.W.2 is convincing to prove

Ex.A-1 agreement of sale transaction. Moreover, one of the attestors in Ex.A-1

agreement of sale is none other than the husband of the defendant. The

defendant simply pleaded ignorance about the signature of her husband in

Ex.A-1 agreement of sale.

19. The appellant/defendant was examined as D.W.1 and the defendant

admitted in her evidence in cross-examination that she does not know

whether she filed any written statement in the suit or not and she does not

know whether the agreement of sale contained the signature of her husband

or not and so also she does not know how her husband signs. Another

admission made by the defendant in her evidence in cross-examination is that

she affixed her thumb impression on blank Non-Judicial stamp paper of

Rs.100/- and she further admits that she cannot make enquiry about the

attestors of Ex.A-1 and Ex.A-2 and her husband and she never made any

efforts to know about the attestors of Ex.A-1 and Ex.A-2 and the plaintiff is her

brother-in-law, except on a blank Non-Judicial stamp paper of Rs.100/-, she

did not affix her thumb impression on any other paper. She further admits that

the thumb impression shown to her on the Vakalath and on the written

VGKR, J.

I.A.No.3 of 2026

In/And

S.A.No.205 of 2022

statement does not belong to her and she further admits that she has no

disputes with the plaintiff. The defendant denied her own thumb impressions

on the Vakalath and on the written statement. Therefore, it is evident that the

appellant is suppressing the truth.

20. The defence put forth by the defendant in the written statement is that

the plaintiff is a member in Nandamuru Primary Agriculture Cooperative

Society and the plaintiff himself has stated that he took loan in the name of the

defendant by pledging the plaint schedule property in the Agricultural

Cooperative Society for purchasing she-buffaloes and the plaintiff obtained

thumb impression of the defendant on blank stamped papers in the absence

of her husband. Whereas in her evidence as D.W.1, she admits that she does

not know in which Agricultural Cooperative Society the plaintiff is a member

and the proof of such membership. Ex.A-3 reveals that prior to filing of the

suit, the plaintiff got issued a legal notice to the defendant and the defendant

also received the same. D.W.2, who is another witness of the defendant,

admits that he came to the Court to give evidence at the request of the

husband of the defendant and he came to know the suit facts through the

husband of the defendant and he pleaded ignorance about the filing of the suit

for specific performance of agreement of sale by the plaintiff in respect of the

plaint schedule property. The aforesaid own admissions of D.W.2 reveal that

he is not having any personal knowledge about the suit facts.

VGKR, J.

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In/And

S.A.No.205 of 2022

21. D.W.3 is none other than the husband of the defendant, he stated in his

evidence in chief-examination that he never signed an agreement and the def

is his wife and Ex.A-1 does not contain his signature. He admits in his

evidence in cross-examination that he does not know who filed the suit

against his wife and also the purpose of the suit and his wife informed him that

his brother filed a suit against his wife and he knew that it was filed about 7 or

8 years back and he did not make any efforts to know the suit details as it was

filed against his wife. He further admits that he is attending the court regularly

and he is looking after the suit affairs. The aforesaid own admissions of D.W.3

reveal that he is also suppressing the truth before the Court. The learned

counsel for appellant would contend that both the Courts below have not

invoked Section 16(c) of the Specific Relief Act in order to test the readiness

and willingness of the plaintiff who paid a paltry sum of Rs.35,000/- out of

Rs.1,50,000/- and the balance amount was neither deposited nor was any

document evidencing his readiness and willingness to perform his part of the

contract. The plaintiff produced a valid agreement of sale between him and

the defendant and the same was exhibited as Ex.A-1. As per Ex.A-1, the

plaintiff had to pay the remaining balance sale consideration of Rs.1,20,000/-

by 27.08.2007 and an advance amount of Rs.30,000/- was received by the

plaintiff on the date of agreement of sale and Ex.A-2 reveals that on

31.08.2006, the defendant received an amount of Rs.5,000/- under Ex.A-2

endorsement and Ex.A-1. To prove his readiness and willingness, the plaintiff

issued a legal notice dated 18.06.2007, and Ex.A-3 Postal Acknowledgment

VGKR, J.

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S.A.No.205 of 2022

Card reveals that the defendant received the said notice. The plaintiff also

furnished his bank account details and also the deposit of balance sale

consideration in his savings bank account in the plaint as well as in his

evidence, to show his financial capacity to discharge his part of the contract

and the fact remains that the plaintiff filed suit on 27.08.2007, i.e., on the last

date of performance of the contract of both the parties. To disprove the same,

nothing was produced by the appellant/defendant and she did not even admit

her own thumb impression on the Vakalath and on the written statement. As

stated supra, this Court came to the conclusion by narrating the reasons that

the defendant and her husband suppressed the truth and the defendant

approached the Court with unclean hands.

22. The plaintiff, to prove Ex.A-1 agreement of sale, relied on the evidence

of P.W.2 and his evidence is trustworthy. Moreover, the defendant herself

admits that she has no disputes with the plaintiff. To show his readiness and

willingness, the plaintiff got issued a legal notice before the date of

performance of contract and the defendant having received the said notice

kept quiet and did not issue any reply notice and remained silent. To show his

readiness and willingness the plaintiff also furnished his bank account details

and also the deposit of balance sale consideration in his bank account in the

plaint as well as in his evidence. Therefore, the plaintiff proved Ex.A-1

agreement of sale.

VGKR, J.

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S.A.No.205 of 2022

23. In a case of U.N. Krishnamurthy (since deceased) through LRs v.

A.M. Krishnamurthy

4

wherein the Apex Court held as follows:

“23. Section 16 (c) of the Specific Relief Act, 1963 bars the relief of specific

performance of a contract in favour of a person, who fails to aver and prove

his readiness and willingness to perform his part of contract. In view of

Explanation (i) to clause (c) of Section 16, it may not be essential for the

plaintiff to actually tender money to the defendant or to deposit money in

court, except when so directed by the Court, to prove readiness and

willingness to perform the essential terms of a contract, which involves

payment of money. However, Explanation (ii) says the plaintiff must aver

performance or readiness and willingness to perform the contract according

to its true construction.

24. To aver and prove readiness and willingness to perform an obligation to

pay money, in terms of a contract, the plaintiff would have to make specific

statements in the plaint and adduce evidence to show availability of funds to

make payment in terms of the contract in time. In other words, the plaintiff

would have to plead that the plaintiff had sufficient funds or was in a position

to raise funds in time to discharge his obligation under the contract. If the

plaintiff does not have sufficient funds with him to discharge his obligations in

terms of a contract, which requires payment of money, the plaintiff would

have to specifically plead how the funds would be available to him. To cite an

example, the plaintiff may aver and prove, by adducing evidence, an

arrangement with a financier for disbursement of adequate funds for timely

compliance with the terms and conditions of a contract involving payment of

money.”

The Apex Court in U.N. Krishnamurthy (7 supra), further held as

follows:

“42. In Saradamani Kandappan [Saradamani Kandappan v. S. Rajalakshmi,

(2011) 12 SCC 18 : (2012) 2 SCC (Civ) 104] this Court reiterated that:

4

(2023) 11 SCC 775

VGKR, J.

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S.A.No.205 of 2022

42.1. While exercising discretion in suits for specific performance, the courts should

bear in mind that when the parties prescribed a time for taking certain steps or for

completion of the transaction, that must have some significance and therefore

time/period prescribed cannot be ignored.

42.2. The courts will apply greater scrutiny and strictness when considering whether

purchaser was ready and willing to perform his part of the contract.

42.3. Every suit for specific performance need not be decreed merely because it is

filed within the period of limitation, by ignoring time limits stipulated in the agreement.

The courts will also frown upon suits which are not filed immediately after the

breach/refusal. The fact that limitation is three years does not mean that a purchaser

can wait for one or two years to file a suit and obtain specific performance. The three

year period is intended to assist the purchaser in special cases, as for example where

the major part of the consideration has been paid to the vendor and possession has

been delivered in part performance, where equity shifts in favour of the purchaser.”

24. A Bench of three Judges of the Hon’ble Apex Court considered the

position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors

5

., and

held as follows:

“…..6. It is true that grant of decree of specific performance lies in the

discretion of the court and it is also well settled that it is not always necessary

to grant specific performance simply for the reason that it is legal to do so. It

is further well settled that the court in its discretion can impose any

reasonable condition including payment of an additional amount by one party

to the other while granting or refusing decree of specific performance.

Whether the purchaser shall be directed to pay an additional amount to the

seller or converse would depend upon the facts and circumstances of a case.

Ordinarily, the plaintiff is not to be denied the relief of specific performance

only on account of the phenomenal increase of price during the pendency of

litigation. That may be, in a given case, one of the considerations besides

many others to be taken into consideration for refusing the decree of specific

performance. As a general rule, it cannot be held that ordinarily the plaintiff

cannot be allowed to have, for her alone, the entire benefit of phenomenal

increase of the value of the property during the pendency of the litigation.

While balancing the equities, one of the considerations to be kept in view is

as to who is the defaulting party. It is also to be borne in mind whether a party

is trying to take undue advantage over the other as also the hardship that

may be caused to the defendant by directing specific performance. There

5

(2002) 8 SCC 146

VGKR, J.

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In/And

S.A.No.205 of 2022

may be other circumstances on which parties may not have any control. The

totality of the circumstances is required to be seen.”

In the present case, both the courts having seen the conduct of the

appellant in suppressing the material facts and on appreciation of the entire

evidence on record produced by both the parties, both the courts below

granted the main relief of specific performance of agreement of sale.

25. For the aforesaid reasons, the plaintiff is entitled to the main relief of

specific performance of agreement of sale. Both the Courts below on

appreciation of the entire evidence on record, came to a conclusion that the

plaintiff in the suit is entitled to the main relief of specific performance of

agreement of sale. The findings of fact recorded by both the Courts below

were based on proper appreciation of evidence and the material on record

and there was neither illegality nor irregularity in those findings and therefore,

the said findings do not require to be upset. Therefore, the conclusions drawn

by both the Courts below are found correct. There is no need to interfere with

the concurrent finding arrived at by both the Courts below. In the light of the

material on record and upon earnest consideration now, it is manifest that the

substantial questions of law raised in the course of hearing in the second

appeal on behalf of the appellant did not arise or remain for consideration.

This Court is satisfied that the second appeal did not involve any substantial

question of law for the determination.

I.A.No.3 of 2026

VGKR, J.

I.A.No.3 of 2026

In/And

S.A.No.205 of 2022

26. The case of the petitioner/plaintiff in brief is as follows:

I. The petitioner pleaded that the respondent, who is no other than the

elder brother of her husband, filed O.S.No.211 of 2007 on the file of the

the Principal Senior Civil Judge, Machilipatnam, seeking specific

performance of the agreement of sale, dated 28.08.2006. The petitioner

further pleaded that she had purchased the plaint schedule property on

28.08.2006 itself under a registered sale deed vide Document No.1650

of 2006 on the file of the Office of the Sub-Registrar, Pedana, in respect

of an extent of Ac.1.24 cents within the specified boundaries as per the

schedule in the said document and the entire land consisting of a single

plot. The petitioner further pleaded that the respondent/plaintiff is

claiming to have obtained an agreement of sale, dated 28.08.2006, in

respect of an extent of Ac.1.00 cent. The petitioner further pleaded that

she never had any intention to sell the plaint schedule property to the

respondent/plaintiff at any point of time and neither she nor her family

members ever proposed to alienate the said property.

II. The petitioner further pleaded that the original registered sale deed,

dated 28.08.2006, was not in her physical possession, as she had

earlier availed an agricultural loan for cultivation purposes and, as a

condition thereof, the petitioner was asked to deposit the original title

deed with the Bank. Thereafter, she applied for and obtained a certified

copy of the said sale deed from the Office of the Sub-Registrar, Pedana.

The petitioner further pleaded that the said registered sale deed is a

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public document and the failure of production of the original document

earlier was neither wilful nor deliberate, but was due to the aforesaid

circumstances and due to lack of legal and technical knowledge.

27. The learned counsel for petitioner would contend that the petitioner

purchased the plaint schedule property on the very same day i.e. on

28.08.2006, and the respondent claims that she executed an agreement of

sale in his favour on 28.08.2006 he further contended that it is a matter of

common sense and prudent human conduct that no person would sell the land

purchased on the same day having just completed the purchase of land in

between 02.00 p.m. and 03.00 p.m. in the Registrar Office. The contention of

the petitioner herein is that she purchased an extent of Ac.1.24 cents of land

under a Registered Sale Deed on 28.08.2006. Whereas, the contention of the

plaintiff is that on 28.08.2006, the defendant agreed to sell the property of

Ac.1.00 cents of land from out of Ac.1.24 cents for an amount of Rs.1,50,000/-

and the defendant received advance sale consideration of Rs.30,000/- out of

Rs.1,50,000/- and the plaintiff has to pay the remaining balance sale

consideration on or before 27.08.2007, on which date the plaintiff filed the suit.

The purchase of the plaint schedule property along with Ac.0.24 cents of the

property under a registered sale deed on 28.08.2006 was not at all pleaded by

the defendant in the written statement. For the first time before the Second

Appellate Court, the defendant has taken the said plea in the affidavit attached

to the petition, that too after submitting arguments of both sides in the second

appeal, and the petitioner/appellant came up with the present application to

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receive the registration extract of the sale deed dated 28.08.2006 and the

encumbrance certificate enclosed to the petition.

28. Order XLI Rule 27 of Civil Procedure Code reads as under:

Production of additional evidence in Appellate Court.-

(1) The parties to an appeal shall not be entitled to produce additional

evidence, whether oral or documentary, in the Appellate Court. But if—

(a) the court from whose decree the appeal is preferred has refused to admit

evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that

notwithstanding the exercise of due diligence, such evidence was not within

his knowledge or could not, after the exercise of due diligence, be produced

by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness

to be examined to enable it to pronounce judgment, or for any other

substantial cause, the Appellate Court may allow such evidence or document

to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to the produced, by an Appellate

Court, the court shall record the reason for its admission.

The general principle is that the appellate Court should not travel

outside the record of the trial Court and cannot take any evidence in appeal.

However, as an exception under Order 41 Rule 27 of Civil Procedure Code,

enable the appellate Court to take evidence in exceptional circumstances

only. The proviso under Order 41 Rule 27 C.P.C. permits the party to produce

additional evidence before the appellate Court provided it has to be come

under the ambit of order 41 Rule 27 of Civil Procedure Code.

29. The documents to be received as additional evidence are the

registration extract of the sale deed dated 28.08.2006 and the encumbrance

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certificate. The purchase of the suit schedule property by the

petitioner/appellant along with other Ac.0.24 cents under a registered sale

deed dated 28.08.2006 is neither pleaded in her written statement nor in her

evidence. For the first time, the defendant, who is the appellant herein, came

up with a petition that too after hearing the arguments in the main second

appeal.

30. In a case of Union of India Vs. Ibrahim Uddin & Anr., vide Civil

Appeal No.1374 of 2008, the Hon’ble Apex Court held as follows:

“37. To sum up on the issue, it may be held that application for taking

additional evidence on record at a belated stage cannot be filed as a matter

of right. The court can consider such an application with circumspection,

provided it is covered under either of the prerequisite condition incorporated

in the statutory provisions itself. The discretion is to be exercised by the court

judicially taking into consideration the relevance of the document in respect of

the issues involved in the case and the circumstances under which such an

evidence could not be led in the court below and as to whether the applicant

had prosecuted his case before the court below diligently and as to whether

such evidence is required to pronounce the judgment by the appellate court.

In case the court comes to the conclusion that the application filed comes

within the four corners of the statutory provisions itself, the evidence may be

taken on record, however, the court must record reasons as on what basis

such an application has been allowed. However, the application should not be

moved at a belated stage.”

31. The procedural framework under Order XLI of the Code of Civil

Procedure, 1908, makes it abundantly clear that an appeal is ordinarily to be

decided on the evidence adduced before the trial Court. The Appellate Court

is not expected to embark upon fresh fact, finding exercise or permit

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production of additional evidence as a matter of routine. Where the Appellate

Court is satisfied that the material already available on record is sufficient to

enable it to pronounce judgment, it is well within its jurisdiction to confine its

consideration to the evidence forming part of the record of the Courts below.

Furthermore, once the trial Court had concluded and the decree was under

challenge in appeal, the appellant could not be permitted to fill the gaps in her

case, that too in a second appeal, by seeking to adduce further material to

fortify a claim that was fundamentally flawed.

32. As noticed supra, the defendant, who is the appellant before the

Second Appellate Court, neither pleaded nor deposed in her evidence about

the purchase of the plaint schedule property along with other Ac.0.24 cents

under a registered sale deed dated 28.08.2006. For the first time, that too

after hearing arguments of both sides in second appeal, the appellant came

up with a petition along with the registration extract of the said sale deed and

also the encumbrance certificate. It is well settled that “in the absence of

pleading, evidence, if any, produced by the parties cannot be considered.” It is

also equally well settled that “no party should be permitted to travel beyond its

pleadings and that all necessary and material facts shall be pleaded by a party

in support of the case set up by the defendant.” For the aforesaid reasons, I

do not find any ground to allow the present Interlocutory Application. Hence,

the present Interlocutory Application vide I.A.No.3 of 2026 is dismissed.

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33. In the result, the Interlocutory Application vide I.A.No.3 of 2026 in

S.A.No.205 of 2022 and S.A.No.205 of 2022 are dismissed confirming the

judgment and decree dated 23.02.2022 in A.S.No.68 of 2016, passed by the

learned I Additional District Judge, Krishna at Machilipatnam. Considering the

facts and circumstances of the case, each party shall bear their own costs in

the second appeal.

As a sequel, miscellaneous petitions, if any, pending in the appeal shall

stand closed.

__________________________

V. GOPALA KRISHNA RAO, J.

Date: 15.06.2026

SRT