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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 6620   OF  2008    Lakshmi Sreenivasa Cooperative Building  Society             …..Appellant          

:Versus:    

Puvvada Rama (Dead) by L.Rs. and Ors.      ....Respondents    

WITH  

CIVIL APPEAL NO. 6625 OF 2008  

J U D G M E N T  

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 of Vijayawada.  

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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 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 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 proceedings.   

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4. The legal representatives of original respondent No.6  

preferred 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.   

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  

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

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appellant against the decision of the High Court dated 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 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 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

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having executed the suit agreements dated 30th June 1977  

and 16th October, 1981.    

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  

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.  

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

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material issues against the appellant/plaintiff, the suit filed by  

the appellant being O.S. No.351/1982, was eventually  

dismissed with 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 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 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.

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  8. The appellant has assailed the dismissal of its suit and  

appeal 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 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  

appropriate authority for transfer of the land in favour of the  

appellant 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

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ought to have been drawn under Section 114 of the 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  

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 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

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held that there was express prohibition for execution of suit  

agreements under 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.   

 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 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 was no adverse decree or for

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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 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.   

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

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recorded by the Trial Court in 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 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 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 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  

                                                           1   (1988) 2 SCC 488

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injustice has been done it is not only the “right” but also the  “duty” of this Court to reverse the 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 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 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)  

“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 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 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  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, 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

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whole court sits to hear every case, that the composition of  majorities is not static. It changes from subject to subject  

though, 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  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 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 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.

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The appellant/plaintiff failed to produce any document to  

show that the nine 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 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 the cheque was encashed and availed by defendant  

No.4 as payment in 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

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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 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 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, 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  

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appellant/plaintiff,  as can be discerned from paragraphs 27  

to 29 of  its  judgment which read thus:  

“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 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 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 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 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 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 attestes, and

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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.   

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 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 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.  

Except the evidence of P.W.1, there is no other evidence of  

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 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 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

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Vijayawada.  The plaintiff filed 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 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 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 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.  

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 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. 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

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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  

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 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 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.  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.   

17. Having said this, it must necessarily follow that the  

appellant/plaintiff cannot be permitted to take the relief  

claimed in the suit any further sans proof of execution of suit

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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 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  

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 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

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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  

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 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 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 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 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 karnam

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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 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 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  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 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 the date of filing of the suit in the year 1982 they would  have paid 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 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 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

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delivery of possession by the 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.   

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  

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 payer is sought in the plaint filed by the

24    

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 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.    

 21. We accordingly dismiss both the appeals with costs.      

 .………………………….CJI.  

     (Dipak Misra)   

…………………………..….J.                (A.M. Khanwilkar)  

…………………………..….J.               (Dr. D.Y. Chandrachud)  

New Delhi;  

July 31, 2018.