1. This second appeal under Section 100 of the Code of Civil Procedure is filed being aggrieved by the judgment and decree, dated 25.04.2014, in A.S.No.05 of 2011, on the file of the Principal District Judge at Srikakulam, reversing the judgment and decree, dated 21.02.2010, in O.S.No.87 of 2001, on the file of the Junior Civil Judge Court, Pathapatnam.

2. The plaintiff initiated action in O.S.No.87 of 2001, on the file of the Junior Civil Judge Court, Pathapatnam, with a prayer for a decree directing the defendants to execute a sale deed in favour of the plaintiff or her nominee in respect of the suit property after receiving the balance of sale consideration of Rs.80,000/- within the time fixed by the Court, on a duly stamped paper supplied by the plaintiff in the manner and form required under law, and in case if the defendants fail to execute the above sale deed, the Court may itself execute the sale deed for and on behalf of the defendants in respect of the suit schedule property at the costs of the plaintiff and to put the plaintiff in possession of the suit schedule property after evicting the defendants therefrom, and for the costs of the suit.

3. The learned Junior Civil Judge, Pathapatnam, decreed the suit with costs. Felt aggrieved by the same, the unsuccessful defendant No.1 in the above said suit filed the aforesaid appeal before the first appellate Court. The learned Principal District Judge at Srikakulam, allowed the appeal by reversing the judgment and decree passed by the learned trial Judge. Aggrieved thereby, the plaintiff in O.S.No.87 of 2001 approached this Court by way of second appeal.

4. The appellant herein is the plaintiff, and the respondents herein are the defendants.

5. For the sake of convenience, both parties in the second appeal will be referred to as they were arrayed in the suit O.S.No.87 of 2001 before the trial Court.

6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.87 of 2001, is as follows:

                  The defendant is the owner of the plaint schedule property, and he intends to sell the same to the plaintiff, and the plaintiff agreed to purchase the same from the defendant for a sum of Rs.1,00,000/-, and the defendant executed an agreement of sale dated 07.11.1998 in favour of the plaintiff agreeing to sell the suit schedule property for Rs.1,00,000/-. The plaintiff pleaded that the defendant received a sum of Rs.20,000/- as part-payment of the consideration and agreed to execute a sale deed after receiving the balance of consideration of Rs.80,000/- in favour of the plaintiff within six (06) months from the date of execution of the sale agreement and to put the plaintiff in possession of the land. The plaintiff further pleaded that the defendant is postponing the execution of the sale deed though the plaintiff is ready to pay the balance of consideration of an amount of Rs.80,000/- and the defendant is trying to sell away the suit schedule property to somebody else; as such, the plaintiff is constrained to file the present suit.

7. The defendant No.2 remained set ex-parte before the trial Court. The case of defendant No.1, as per the written statement filed by defendant No.1, is as follows:

                  The plaintiff approached the defendant in the year 1996 and requested him to sell the schedule property to her; as a matter of fact, he was not interested to sell the schedule property, and the plaintiff and her husband convinced the defendant to sell the schedule property on the ground that the plaintiff would construct a building in the schedule property to run her advocate office, and that he was convinced. The defendant No.1 further pleaded that on 07.11.1996, he got prepared an agreement of sale in favour of the plaintiff, wherein it is mentioned as if the defendant paid Rs.20,000/-, whereas in fact, the plaintiff had paid him Rs.4,000/- only on the date of the execution of the agreement of sale. The defendant No.1 pleaded that the husband of the plaintiff approached him with the sale agreement and he brought two attestors, who are his relatives, and the 1st attestor is Meriballi Rama Rao and the 2nd attestor is K.Rajasekhar, and the scribe is Boyina Kanakayya, and the defendant had put his signature on the sale agreement, and thereafter, the attestors signed on the document, and the husband of the plaintiff instructed the attestors not to put any date underneath their signatures as he was not ready with Rs.20,000/-, and the husband of the plaintiff promised the defendant that he would pay Rs.16,000/- within one or two days, and at that time, the date and time would be mentioned in the document. The defendant No.1 further pleaded that no date is mentioned under the signature of himself, the attestors, and the scribe of the document, and the plaintiff did not pay the remaining balance Rs.16,000/- to the defendant, and he did not comply with the terms of the sale agreement. The defendant No.1 further pleaded that neither the plaintiff nor her husband came forward with the remaining balance of sale consideration and never asked the defendant to execute the sale deed for the schedule property. The 2nd attestor of the sale agreement is no more, and after his death, the plaintiff allegedly put the date as 07.11.1998 underneath the signature of the 2nd attestor, and as such, he prayed for dismissal of the suit with exemplary costs.

8. On the basis of above pleadings, the learned trial Judge framed the following issues for trial:

                  1) Whether the suit agreement of sale dated 07.11.1998 is true, valid and binding on the defendant?

                  2) Whether the plaintiff has performed her part of contract?

                  3) Whether the suit is barred by limitation?

                  4) Whether the plaintiff is entitled to the relief of specific performance?

                  5) To what relief?

                  On 30.01.2004, the trial Court has framed the following additional issue:

                  1) Whether the 2nd defendant is a necessary party to the suit?

9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Ex.A-1 was marked. On behalf of the defendants, D.Ws.1 and 2 were examined and no document was marked.

10. The learned trial Judge 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 No.1 filed the appeal suit in A.S.No.05 of 2011, wherein the following points came up for consideration:

                  1) Whether Ex.A-1 agreement of sale was executed on 07.11.1998 as contended by the 1st respondent/plaintiff or on 07.11.1996 as contended by the appellant/1st defendant?

                  2) Whether Ex.A-1 agreement of sale is true, valid and binding on the appellant/1st defendant?

                  3) Whether the suit is barred by limitation?

                  4) Whether the 1st respondent/plaintiff is entitled for specific performance of Ex.A-1 agreement of sale?

                  5) Whether the decree and judgment dated 21.12.2020 in O.S.No.87 of 2001 passed by the learned Junior Civil Judge, Pathapatnam are liable to be set aside or confirmed and if so to what relief?

11. The learned first appellate Judge after hearing the arguments, answered the points, as above, against the plaintiff, and allowed the appeal by reversing the judgment and decree passed by the learned trial Judge. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.87 of 2001 filed the present second appeal before this Court.

12. On hearing learned counsel for the appellants at the time of admission of the second appeal on 25.07.2014, the Composite High Court of Andhra Pradesh, at Hyderabad, admitted the second appeal and framed the following substantial question of law:

                  1) Whether the Judgment of the Court below is based on surmises and conjectures and whether the Court below was not correct in reversing the judgment of the trial Court without adverting to the relevant facts and considering the relevant evidence on record? And, if so, whether the judgment impugned is unsustainable under facts and in law?

13. Heard Sri Mojjada Hari Krishna, learned counsel, representing Sri Chukka Kranthi Kiran, learned counsel for the appellant/plaintiff and Sri Mahesh Kumar Kancharla, learned counsel for the respondent No.2.

14. The law is well settled that under Section 100 of CPC, High Court cannot interfere with findings of fact arrived at by first appellate Court, which is final Court of facts, except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.

                  In the case of Bhagwan Sharma v. Bani Ghosh(AIR 1993 SC 398), the Apex Court held as follows:

                  “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.”

                  In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar(AIR 1999 SC 471), the Apex Court held as follows:

                  “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless 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 without evidence.”

15. Learned counsel for the appellant would contend that the First Appellate Court has come to a conclusion that about the execution of Ex.A-1 agreement by defendant No.1 in favour of the plaintiff, instead of confirming the findings of the trial Court, allowed the appeal by setting aside the findings of the trial Court. The specific contention of the respondent/plaintiff is that defendant No.1 executed an agreement of sale on 07.11.1998, in favour of the plaintiff agreeing to sell the suit schedule property for Rs.1,00,000/- and received the sale consideration of Rs.20,000/- as part payment of sale consideration. It is the specific case of the defendant that P.W.1 approached him in the year 1996 and requested him to sell the suit schedule property to her, and as a matter of fact, he was not interested to alienate the schedule property, and P.W.1 convinced him to sell the same on the ground that he would construct a building in the suit schedule property to run his advocate office, and that the defendant was convinced. The defendant further specifically pleaded that on 07.11.1996, P.W.1 got prepared an agreement of sale in favour of the plaintiff i.e., his wife, and in Ex.A-1, it was mentioned as if he was paid Rs.20,000/-, whereas in fact, P.W.1 paid Rs.4,000/- only on the date of Ex.A-1, and on 07.11.1996 P.W.1 paid him Rs.4,000/- under Ex.A-1 agreement of sale and promised him that he would pay the remaining Rs.16,000/-, and subsequently he failed to fulfill his promise. Therefore, initially the burden is on the plaintiff to prove that Ex.A-1 was executed on 07.11.1998, but not on 07.11.1996, and the plaintiff is also supposed to prove that she paid an amount of Rs.20,000/-, but not Rs.4,000/- under Ex.A-1 on 07.11.1998 as pleaded by the defendant.

16. To prove the recitals in Ex.A-1, the plaintiff relied on the evidence of her husband/P.W.1. The suit for specific performance of agreement of sale is based on Ex.A-1. As could be seen from Ex.A-1, it is evident that the portion in which the year is written was found to be torn away, and there is no mention in Ex.A-1 that it was executed in the year 1998. The date 07.11.1998 is alleged to have been written underneath the signature of the 2nd attestor, and the same is not in a natural course and appears to be different. Admittedly, the plaintiff failed to examine the attestors and scribe of Ex.A-1 to prove Ex.A-1 document.

17. The plaintiff also failed to examine the attestors and scribe of Ex.A-1, in fact, the 1st attestor was examined as D.W.2 by the defendant. It was contended that the 2nd attestor and the scribe of Ex.A-1 are no more, but the plaintiff failed to examine the family members of the 2nd attestor and the scribe of Ex.A-1 to prove their signatures and handwriting. By giving cogent reasons, the First Appellate Court held that putting the date as 07.11.1998 underneath the signature of the 2nd attestor could be said to be a subsequent thought and it also appears to be unnatural. Moreover, the stamp paper of Ex.A-1 is of Rs.10/-, purchased on 07.11.1996, which also clinchingly supports the case of the defendant that P.W.1 obtained the alleged agreement on 07.11.1996, but not on 07.11.1998. The husband of the plaintiff herein is not an illiterate and he is practising as an advocate. The date, month and year of purchase of the stamp paper used to prepare Ex.A-1 is dated 07.11.1996. All the aforesaid circumstances reveal that P.W.1 obtained Ex.A-1 on 07.11.1996, but not on 07.11.1998.

18. As stated supra, the 1st attestor of Ex.A-1 is alive, but the plaintiff failed to examine the 1st attestor to prove that the suit document is dated 07.11.1998, but not on 07.11.1996. The 1st attestor in Ex.A-1 agreement of sale was examined as D.W.2 by the defendant. As per his evidence, on 07.11.1996, the son of P.W.1 purchased a non-judicial stamp worth Rs.10/- from Dokki Krishnamurthy, Stamp Vendor, Pathapatnam, for the purpose of preparing the sale agreement i.e., Ex.A-1, and one Boyina Kankkaya is the scribe of Ex.A-1 and he is one of the attestors of Ex.A-1, and the other attestor of Ex.A-1 is one K.Rajasekhar, and P.W.1 paid Rs.4,000/- to D.W.1 under Ex.A-1 agreement of sale. He further deposed that P.W.1 promised that he would pay the remaining balance of Rs.16,000/- within one or two days and obtained the signature of defendant No.1 on Ex.A-1 on 07.11.1996. He further deposed that the plaintiff did not participate in the process of execution of Ex.A-1 sale agreement and she was not present at the time of the alleged Ex.A-1 agreement dated 07.11.1996, and the 2nd attestor Rajasekhar did not put any date underneath any signature on Ex.A-1 sale agreement. The evidence of D.W.2 clinchingly establishes that P.W.1 obtained Ex.A-1 agreement from the defendant on 07.11.1996 and paid Rs.4,000/- only, but not Rs.20,000/- as recited in Ex.A-1 agreement. Therefore, it is evident that the alleged agreement was prepared on 07.11.1996, but not on 07.11.1998. Moreover, the plaintiff did not issue any legal notice to the defendant before filing of the suit, and the plaintiff herein filed the suit in the year 2001.

19. The defendant specifically pleaded that Ex.A-1 is scribed on 07.11.1996, and the plaintiff paid an amount of Rs.4,000/- only out of Rs.20,000/- as advance sale consideration and also failed to pay the remaining Rs.96,000/-, and filed the suit in the year 2001, and that the suit is barred by the law of limitation. The contention of the appellant is that on 07.11.1998, the defendant agreed to sell the schedule property for Rs.1,00,000/-. As noticed supra, the specific contention of the defendant is that on 07.11.1996, P.W.1 came along with the stamp paper of Rs.10/- dated 07.11.1996, and agreed to purchase the schedule property for Rs.1,00,000/- and out of the advance amount of sale consideration of Rs.20,000/-, he paid Rs.4,000/- and agreed to pay the remaining balance advance sale consideration of Rs.16,000/- within two (02) days, but he neither paid Rs.16,000/- nor paid the balance sale consideration of Rs.96,000/-, and all of a sudden, the plaintiff filed the present suit in the year 2001 i.e., after five (05) years of allegedly obtaining the agreement from the defendant, and that the suit is barred by the law of limitation. As noticed supra, the plaintiff failed to examine the attestors and scribe of Ex.A-1, but the defendant examined the 1st attestor in Ex.A-1 as D.W.2, and his evidence supports the case of the defendant. Moreover, no notice or demand is made by the plaintiff within three (03) years from 07.11.1996, and the suit is filed after five (05) years from the date of 07.11.1996. Therefore, the suit is hopelessly barred by the law of limitation.

20. Learned counsel for the appellant would contend that the First Appellate Court failed to appreciate that Ex.A-1 was acted upon by the defendant herein by paying an amount of Rs.4,000/-, which was also supported by the version of D.W.2 by way of affidavit. As stated supra, it is the specific case of the defendant, which is supported by D.W.2, that P.W.1 came with a stamp paper dated 07.11.1996 and obtained the signature of the defendant on 07.11.1996 and obtained an agreement of sale in favour of the plaintiff. The appellant failed to prove the recitals of Ex.A-1 that on 07.11.1998, the defendant entered into an agreement of sale and received an amount of Rs.20,000/- from the plaintiff, and the same is not supported by any other documentary evidence.

21. As stated supra, the alleged Ex.A-1 was prepared on 07.11.1996, and the plaintiff agreed to pay the amount of Rs.16,000/- out of the advance sale consideration of Rs.20,000/-, but, the plaintiff neither paid the advance sale consideration of Rs.16,000/- within two (02) days as promised nor paid an amount of Rs.96,000/- towards the remaining balance sale consideration, and the plaintiff approached the trial Court for seeking relief of specific performance of agreement of sale. The very recitals in Ex.A-1 agreement are disputed by the defendant. As seen from Ex.A-1, it is evident that the portion where the year is written was found to be torn away. There is no mention in Ex.A-1 agreement of sale that it was executed on 07.11.1998. Therefore, the plaintiff approached the Court with unclean hands and suppressed the truth, and that she is not entitled to the relief of specific performance of agreement of sale. As noticed supra, the plaintiff also failed to prove that on 07.11.1998, the defendant executed an agreement of sale and received Rs.20,000/- out of Rs.1,00,000/-, and without issuing any demand notice, or without any demand, all of a sudden, i.e., after five (05) years from the date of Ex.A-1, i.e., on 07.11.1996, the plaintiff filed the present suit, and the present suit is barred by the law of limitation. As noticed supra, the plaintiff also failed to prove that on 07.11.1998, she entered into an agreement of sale with the defendant and paid advance sale consideration of Rs.20,000/- to the defendant. For the aforesaid reasons, this Court is of the considered view that the plaintiff is not entitled the relief of Specific Performance of agreement of sale.

22. On appreciation of the entire evidence on record on all the issues decided by the trial Court and after framing the points for consideration as required under Section 96 of the Code of Civil Procedure, 1908, the learned First Appellate Judge rightly allowed the first appeal and came to a conclusion that the plaintiff is not entitled to the relief of specific performance of agreement of sale. In the light of the material on record and upon earnest consideration, 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 this second appeal does not involve any substantial question of law for determination.

23. In the result, the second appeal is dismissed, confirming the judgment and decree passed by the First Appellate Court. Pending applications, if any, shall stand closed. Each party shall bear their own costs in the second appeal.