1. The present appeal has been filed by the appellants/ plaintiffs against the judgment and decree dated 22.07.2003 passed in O.S.No.118 of 1995 on the file of the Principal Senior Civil Judge, R.R.District at NTR Nagar, Hyderabad, whereby the suit filed by the appellants/plaintiffs was dismissed and the counter-claim of the defendant for ejectment of the plaintiff over the suit schedule property was decreed.

2. The parties hereinafter shall be referred to as arrayed in the original suit, for the sake of brevity and better understanding of the case.

3. The instant suit is filed by the plaintiff for specific performance of the agreement of sale, dated 14.10.1991, along with the perpetual injunction in respect of the house bearing No.3-13/111B, admeasuring an extent of 367 square yards, situated at Srinivasnagar Colony, Ramanthapur, Ranga Reddy District, (hereinafter referred to as ‘suit schedule property’).

4. The defendant has filed a counter-claim seeking ejectment of the plaintiff over the suit schedule property claiming that the plaintiff was inducted into the suit schedule property as tenant. After considering the evidence and material placed on record, the learned trial Court Judge dismissed the suit filed by the plaintiff and decreed the counter-claim filed by the defendant for ejectment of the plaintiff over the suit schedule property.

5. The brief facts of the case are that, plaintiff is doing iron scrap business and he had acquaintance with the defendant and out of the said acquaintance, in the year, 1991, the defendant, who is the original owner and possessor of the suit schedule property, offered to sell the suit schedule property to the plaintiff for a total sale consideration of Rs.3,00,000/-, for which, the plaintiff agreed to purchase the same. It is further averred that it is agreed by the defendant that stamp duty and registration charges shall be borne by him. It is the specific case of the plaintiff that in view of the offer and acceptance, an agreement of sale was entered on 14.10.1991, and advance sale consideration of Rs.5,000/- was paid. Further, it is stated that the plaintiff paid an amount of Rs.2,30,000/- on different dates. Further, it is stated that on 30.10.1991, the defendant having received the amount of Rs.50,000/- promised to handover the possession of the suit schedule property on payment of further amount of Rs.1,00,000/-, and the plaintiff paid an amount of Rs.40,000/- on 11.11.1991 and another sum of Rs.40,000/- on 18.11.1991. In pursuance of the same, the defendant delivered the vacant possession of the suit schedule property to the plaintiff on 18.11.1991 and ever since the date of delivery of possession to the plaintiff, the plaintiff is enjoying the property by running an iron scrap business in the schedule property. Further, it is averred that the plaintiff approached the defendant many times expressing his readiness and willingness to obtain the sale deed. However, the same was postponed by the defendant and failed to perform his part of obligation. Thus, the plaintiff issued notice on 11.04.1992 calling upon the defendant to receive the remaining sale consideration and to execute the registered sale deed and on receipt of said notice, the defendant alleged to have approached the plaintiff and promised to execute the sale deed, but he failed to do so.

6. It is the specific case of the plaintiff that though the defendant accepted to bear the stamp duty and registration charges, he has demanded an additional amount of Rs.70,000/- and in the meantime, plaintiff came to know that the defendant was contemplating to alienate the said property to third parties to defeat the legitimate right of the plaintiff despite receiving substantial sale consideration and also handing over the possession of the schedule property to the plaintiff. Therefore, the plaintiff issued one more notice, dated 02.03.1995 through his counsel calling upon the defendant to receive the balance sale consideration and execute the sale deed, and though the defendant received the said notice has neither came forward to execute the      sale deed nor has replied to the said notice. Thus, the plaintiff instituted the underlying suit for specific performance of agreement of sale, dated 14.10.1991.

7. The defendant filed his written statement, inter alia, contending as follows:

               7.1. The defendant specifically denied the claim of the plaintiff and contended that the alleged transaction is false and baseless. It was contended that the value of the property in the year 1991 was approximately Rs.8,00,000/-, however, the sale consideration was only shown as Rs.3,00,000/-, which itself falsifies the case of the plaintiff. It is specifically averred by the defendant that due to loss in business while he was making efforts to borrow a sum of Rs.1,00,000/- from the Bank of Baroda, Abids Branch, Hyderabad, by mortgaging his house, at that juncture, one of the customers of the defendant, stated about the plaintiff and his profession in lending money on interest. The plaintiff offered to pay an amount of Rs.1,00,000/- with interest @ 24% per annum to the defendant as loan on condition that his house should be given as security to him. Further, it is stated that the plaintiff himself scribed the same on a stamp paper and obtained the signature of the defendant upon it. It is averred that the plaintiff also convinced the defendant stating in the event of any contingencies, he can recover the amount from his family members, as such, the signatures of wife and son of the defendant were also obtained on a stamp paper. Further, in pursuance of the same, it is stated that the plaintiff paid Rs.5,000/-, Rs.15,000/-, Rs.40,000/- and Rs.40,000/- on four occasions within a span of one month.

               7.2. The defendant issued a reply notice on 18.03.1995 through his advocate, to the notice of the plaintiff dated 03.02.1991, stating that since the entire loan amount was not paid in lump sum, the defendant was put to loss and that the plaintiff claimed exorbitant interest, and also obtained the receipts forcibly from the defendant, and collected a cheque by force and encashed the same by adjusting it towards interest. Apart from the same, it is stated that the plaintiff has also received an amount of Rs.9,000/- towards interest. However, the plaintiff without paying any amount, obtained the receipts for Rs.5,000/- and Rs.9,000/- on two occasions, and since the defendant was an illiterate, he had signed the blank papers as he was in financial problems.

               7.3. It was further averred by the defendant that plaintiff suggested a scheme stating that he will take the entire house of the defendant towards his office on a monthly rent of Rs.5,000/- and he would adjust the rent against the amount due, and the defendant accepted the said proposal without sensing the intention of the plaintiff and delivered the possession of the suit schedule property to the plaintiff on 01.07.1992. It is further stated that plaintiff has used it for residential purpose and has been residing in the said house. Thus, the defendant has filed counter-claim for recovery of possession of the suit schedule property as the schedule property was delivered on a promise to adjust the rent of Rs.5,000/- per month. Since the amount was already sufficiently adjusted towards the hand loan amount, the defendant sought for ejectment of the plaintiff over the suit schedule property. The plaintiff filed a rejoinder and opposed the counter-claim and has specifically denied the contentions in the written statement and counter-claim.

8. Learned trial Court Judge, after completion of pleadings, the following issues were settled for adjudication:

               1) Whether the plaintiff is entitled for the specific performance of the agreement of sale dated 14.10.1991 in respect of the suit schedule property ?

               2) Whether the plaintiff is entitled for the injunction sought for ?

               3) Whether the agreement dated 14.10.1991 is only a money bond for Rs.1,15,000/- advanced by the plaintiff to the defendant and that the same is null and void ?

               4) To what relief if any?

9. To substantiate his case, the plaintiff himself examined as P.W.1, along with P.W.2, and got marked Exs.A1 toA14. The defendant himself examined as DW.1 and marked Exs.B1 to B2 on his behalf.

10. After completion of enquiry, and upon hearing the arguments advanced by both sides, the learned trial Court Judge dismissed the suit filed by the plaintiff and allowed the counter-claim of the defendant, which led to the filing of the instant appeal before this Court.

11. In the first instance, since the plaintiff has preferred the present appeal only against the dismissal of the suit, and has not challenged the decree passed in the counter-claim, the present Appeal was dismissed by this Court. However, since the plaintiff has filed an application to review the said judgment stating that one appeal is maintainable to challenge the dismissal of the suit filed by the plaintiff and also for challenging decree in the counter-claim filed by the defendant, this Court after appreciating the law on the field, has recalled the original dismissal order and subsequently the suit was restored. Thereafter, the plaintiff has filed miscellaneous application under Section 149 of CPC to receive the Court fee towards counter-claim and this Court allowed the same and the deficit court fee of Rs.8326/- was received. That is how, the matter is posted before this Court for hearing.

Findings of the trial Court:

12. Learned trial Court Judge, after coming to a conclusion that the very agreement of sale vide Ex.A1 is doubtful since there are contradictions between the depositions of P.W.1 and P.W.2 with regard to the total payment of sale consideration, and Ex.A1 dated 11.10.1991, which is an agreement of sale in dispute consists of two papers, and the next paper is dated 30.10.1991, wherein some part payment was shown and both the stamp papers were purchased on the very same day on 14.10.1991, and on the date of 14.10.1991, an amount of Rs.5,000/- was paid and on 30.10.1991 an amount of Rs.15,000/- was paid and since the stamp paper was on same date and transaction is of two dates, the learned Judge disbelieved the said document to be a bona fide agreement of sale and held that the same was a money bond, thus, allowed the counter-claim.

13. Further, as the defendant took a specific plea that, his signatures were obtained on a blank stamp papers, the learned trial Court Judge expressed a suspicion with regard to the execution of Ex.A1 by holding that the scribe of Ex.A1-agreement of sale was not examined, and only an attesting witness, who is admittedly a friend of plaintiff, was examined, and as there are discrepancies in respect of sale consideration as deposed by P.W.1 and P.Ws.2, the learned trial Court held that Ex.A1 is not a bona fide agreement of sale to sell the schedule property and it appears to be a money bond obtained as if an agreement of sale for securing the loan. More so, the learned trial Court Judge having appreciated Ex.A1 categorically held that in the foremost paragraphs of the next page of Ex.A1, if examined properly, long gap is maintained between the lines, however, in the last paragraph it was written in a narrowed space, these variations of the writings on the agreement of sale vide Ex.A1 supported the version of the defendant that his signatures were obtained on a blank stamp paper. Further, the learned trial Court has also opined that except Exs.A4 to A7, which are receipts alleged to have executed by the defendant, particularly Exs.A5 to A7 are evidencing the payments through the cheques though issued for different dates, the receipts are on the same date of 06.05.1992 for total amount of Rs.30,000/- which were dishonoured for payment as was categorically admitted by P.W.1. Thus, the learned trial Court opined that the cumulative circumstances create a suspicion with regard to the execution of Ex.A1 to be an agreement of sale and more so, a receipt is filed vide Ex.A4 dated 15.05.1992 for a sum of Rs.50,000/- after the dishonor of the cheques, which created the suspicion on Ex.A1.

14. The learned trial Court Judge held that the said agreement of sale was not a document purported to be executed by the defendant to sell the property and Ex.A1 is only a money transaction bond obtained for security and the plaintiff played mischief and filled up the blank signed papers and used it as an agreement of sale. Further, learned trial Court Judge held that Ex.A3, which is a receipt showing the delivery of possession of the suit schedule property to the plaintiff is only on Rs.30/- stamp paper. Since it is not properly stamped, the learned trial Court Judge held that it is not a proper document as an agreement of sale coupled with the possession cannot be executed on insufficient stamp papers. The learned trial Court holding that agreement of sale vide Ex.A1 is not trustworthy document and it was only a security document executed for securing a loan transaction between the defendant and thus, the said suit was dismissed as the said document is not a valid agreement of sale. Further, as the plaintiff is in possession of the schedule property and holding that the defendant has proved his case for ejectment of the plaintiff over the suit schedule property allowed the counter-claim, which lead to filing of the appeal before this Court.

Submissions of the appellants/plaintiffs:

15. The learned counsel for appellants/plaintiffs submits that plaintiff has sufficiently established the agreement of sale by pleadings and evidence, however, the trial Court has gone into the probabilities and dismissed the suit in a mechanic manner and allowed the counter-claim without any proper findings. The learned counsel appearing for plaintiff would contend that plaintiff has entered into an agreement of sale with the defendant vide Ex.A1, dated 14.10.1991, wherein, advance sale consideration of Rs.5,000/- was paid on the said date and further, from 14.10.1991 to 05.09.1993, further amounts were paid, most of the payments were made through cheques. It is contended that in all, the defendant received a total amount of Rs.2,30,000/-, and further on 18.11.1991, the defendant has put the plaintiff in possession of the suit schedule property. The learned counsel for the plaintiff contends that the learned trial Court, under erroneous views and facts, has held that the agreement of sale vide Ex.A1 was a money transaction and the said findings of the learned trial Court are perverse, untenable and are not proper and solely based on probabilities and assumptions. It is contended that though Ex.A1 was validly executed and coupled with delivery of possession of suit schedule property after receipt of substantial sale consideration, certain minor discrepancies in version of P.W.1 and P.W.2 cannot disentitle the plaintiff for the specific performance of agreement of sale.

16. Learned counsel further submitted that plaintiff under Ex.A12 was constrained to issue a telegraphic notice to the defendant calling upon the defendant to come forward to execute a proper sale deed. However, when the defendant did not come forward to register the sale deed, the plaintiff was constrained to issue legal notice under Ex.A13, dated 02.03.1995, and the defendant issued a reply notice dated 18.03.1995. The learned counsel contended that the counter-claim filed by the defendant claiming to be a tenant is not sustainable and the learned trial Court has not dealt it by a proper procedure and the same should also been to be dealt like a suit. It is contended that learned trial Court Judge under various presumptions and assumptions without categorical findings dismissed the suit and erroneously allowed the counter-claim. Further, it is also contended that the learned trial Court Judge has not framed any issue in respect of the tenancy in between the plaintiff and defendant and the said issue has to be determined in a suit of counter-claim filed by the defendant, nevertheless, the trial Court Judge did not appreciate the facts in a proper way and erroneously dismissed the suit of the plaintiff, and allowed the counter-claim of the defendant.

17. Learned counsel for plaintiff also contended that the attesting witness to Ex.A1, namely, Syed Iqbal, was duly examined as P.W.2 and the role of the attesting witness is only confined to attestation of execution and signatures, and in the present suit, he was examined as P.W.2 and his testimony is more substantive, since nothing contrary has been proved from the cross-examination of P.W.2, and P.W.2 categorically supported the agreement of sale vide Ex.A1, as such, the learned trial Court Judge ought to have allowed the suit and dismissed the counter-claim.

18. Insofar as the limitation aspect, learned counsel for plaintiff would contend that as per the agreement of sale vide Ex.A1 dated 14.10.1991, since the time was not essence of the contract, the part payments were made up to 05.01.1993 and as per the Article 54 of the Limitation Act, the limitation period for filing a suit for specific performance is three years; (a) from the date fixed for performance, or (b) if no such date is fixed, from the date when the plaintiff’s first notices refusal of performance. Assuming the last payment date i.e., 05.01.1993 as the starting point of limitation, the plaintiff was required to file a suit on or before 05.01.1996 and since the present suit was filed on 23.03.1995, which is well within the limitation.

19. Learned counsel for plaintiff would contend that the pleadings filed by the defendant are contrary and on one instance, the defendant would submit that signatures were obtained on a blank papers and in other instance, writings are scribed by the plaintiff by his own handwriting and obtained the signatures of the defendant and the said pleadings cannot go together, and the learned counsel contends that the plaintiff has made out case and substantial grounds for allowing the suit and dismissal of the counter-claim.

20. The learned for the appellants/plaintiffs, to buttress his contentions, has relied upon the following decisions:

               1) Puzhakkal Kuttappu v. C.Bhargavi and others((1997) 1 SCC 17);

               2) Namburi Basava Subrahmanyam v. Alapati Hymavathi and others((1996) 9 SCC 388);

               3) Ram Gopal v. Nand Lal and others(1950 SCC 702);

               4) Thiruvengadam Pillai v. Navneethamal(2008 (4) SCC 530);

               5) Hemkunwar Bai v. Sumersingh(Civil Appeal No.8827 of 2011 of Supreme Court)

21. In Puzhakkal Kuttappu (supra) and Namburi Basava Subramanyam (supra), wherein the Hon’ble Supreme Court held that nomenclature of the document is not always conclusive, the intention of the parties to the document has to be looked into by reading the document as a whole.

22. In Ram Gopal (supra), the Hon’ble Supreme Court held that intention of parties is the main scope of determination of the document.

23. Learned counsel for the appellant would contend that the learned trial Court Judge, without there being any authority, i.e., expert evidence, has scrutinized Ex.A1 and erroneously came to a conclusion that there are variations in the writings and on probabilities held that Ex.A1 is not a agreement of sale and only a money transaction.

24. Learned counsel would contend that without there being any pleadings by the defendant, such findings are not proper and the learned counsel placed reliance in the case of Thiruvengadam Pillai (supra), and the learned counsel would also contend that defendant has taken several contrary pleadings, in his reply and written statement. The learned counsel would contend that under Section 68 of the Indian Evidence Act, it is relevant for the said issue, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has to be called for the purpose of proving its execution and since P.W.2 was attesting witness as he has deposed that he has attested Ex.A1, and solely on a minor discrepancy in the amounts, his testimony cannot be disbelieved.

25. The learned counsel relied upon a decision in Hemkumar Bai (supra), wherein the Hon’ble Supreme Court held that the witness need not know the contents of the documents, and his role is limited to the identification of signatures and whether the executants have signed the documents in his presence or not.

26. Learned counsel for appellant relied upon several decisions by citing several settled principles of law and finally would contend that since Ex.A1 is unequivocally shows that the said property was sold for a sum of Rs.3,00,000/- and amount of Rs.5,000/- was paid by the plaintiff as advance sale consideration, and no where the document would show that it is a money transaction and on all subsequent dates, total amount of Rs.2,30,000/- was paid, as such, the suit should have been decreed and the counter-claim is to be dismissed. The learned counsel contends that appellant/plaintiff has placed substantial grounds for interference of this Court to set aside the judgment and decree passed by the trial Court and allow the suit claim and to dismiss the counter-claim of the defendant.

Submission of the learned counsel for the respondent/defendant:

27. Learned counsel for the defendant would contend that the trial Court Judge after appreciating Ex.A1, its contents along with subsequent payments, though were not properly paid to the defendant, has categorically held that Ex.A1 is not a agreement of sale as it is not trustworthy. Further, the plaintiff has not dispelled the suspicious circumstances, created on Ex.A1. Further, it is contended that the plaintiff miserably failed to prove its case and the trial Court properly dealt all the issues in proper perspective, and dismissed the suit and rightly allowed the counter-claim.

28. Learned counsel for defendant would contend that defendant is an illiterate and a vegetable vendor and he had no prior acquaintance with the plaintiff, and the value of the suit schedule property in the year 1991 was Rs.8.00 lakhs, however, the sale consideration was fixed only at Rs.3,00,000/-, which itself falsifies Ex.A1. Learned counsel further submits that since the defendant sustained loss in vegetable business and was in dire financial difficulty, and through one of the customers of the defendant, the defendant approached the plaintiff and requested to advance a sum of Rs.1,00,000/- to him, and that the said amount though not advanced in one go, and amount of Rs.1,15,000/- was advanced in several dates.

29. Further, the learned counsel would contend that the payments from Ex.A4 to A9 are not paid and the plaintiff admitted that the cheques which were issued vide Exs.A5 to A7 to a sum of Rs.30,000/- were dishonoured and that subsequent payment of Rs.1,50,000/- was also not proved, and the blank stamp papers, which signed by the defendant, were for security purposes for advancing the amounts to the plaintiff. The learned counsel contended that Ex.A1 is not a proper document, and the learned trial Court Judge by appreciating the same as to the discrepancies in writings held that the Ex.A1 cannot be termed as an agreement of sale and only it is a money transaction.

30. The main contention of the defendant is that, plaintiff has obtained the signatures of the defendant on a blank papers and used it for preparing Ex.A1 and though legal notice was issued, specific reply was also issued by the defendant and subsequently, so as to guarantee payment, on the assertion of the plaintiff as he required his house for rental purpose, the possession of the said house was delivered. Further, it was specifically understood that an amount of Rs.5,000/- per month would be adjusted towards rent and total amount of Rs.1,15,000 received would be adjusted towards rent, and subsequently, after completion of the amount, the suit schedule property would be conveyed to the defendant.

31. Learned counsel would contend that in the cross-examination of P.W.1, it is specifically stated that one Sathaiah of Jangaon in Warangal District is the scribe of Ex.A1, and Ex.A1 does not bear endorsement that Sathaiah is the scribe and however, Sathaiah is also scribe of ExA3 and he was not examined. Further, the learned counsel contends that Exs.A4 to A7 evidencing the total payment of Rs.30,000/-, which was executed on 06.05.1992, were dishonoured which was specifically admitted by P.W.1, and further, in the cross-examination of P.W.2, who is alleged attestor of Ex.A1, he has stated that scribe also affixed the signature on Ex.A1. However, the said scribe has not signed on Ex.A1. It is contended by the learned counsel for defendant that the plaintiff has approached this Court with unclean hands and has not properly stated the said fact, and the learned trial Court Judge has properly dealt with all the issues and it is also stated that in fact, in the grounds of appeal, there are no grounds raised against the counter-claim. Only after the appeal against the dismissal of the suit was dismissed and subsequently, after recall of the said order, the plaintiff purportedly filed an application vide I.A.No.1 of 2023 under Section 149 of CPC seeking permission to pay court fee on the counter-claim, but no grounds are raised.

32. Learned counsel for defendant in support of his contentions has placed reliance on the following decisions:

33. Learned counsel placed reliance in the case of L.N.Aswathama and others v. P.Prakash(MANU/SC/1222/2009 : (Civil Appeal No.4125 of 2009)), the Hon’ble Supreme Court held that the first appellate Court can re-appreciate evidence and record findings different from those recorded by the trial Court. It is equally well settled that where the trial Court has considered the entire evidence and recorded several material findings, the first appellant court would not reverse them on the basis of conjectures and surmises or without analyzing the relevant evidence in entirety.

34. Learned counsel also places reliance upon the judgment of the Division Bench of erstwhile High Court of Andhra Pradesh in the case of Krovidi Kameswaramma and others v.Kudapa Balaramayya and others(MANU/AP/0649/1998), wherein it was held that “Any plaintiff must come to the Court with clean hands, more so, in the case of a plaintiff who seeks an equitable relief of specific performance. The relief by way of specific performance lies within the discretion of the Court. It is absolutely necessary that the plaintiff should come to the court with clean hands. In other words, a plaintiff who sets up a false case cannot expect a Court of equity to grant him the relief.

35. Learned counsel also placed reliance the decision of the Division Bench of High Court of Madras in Doraiswami v. Rathnammal and others(AIR 1978 Mad 78), wherein it was held that mere fact that the signature of the person is proved, is not sufficient to prove the due execution of the will.

36. Learned counsel also relied upon the judgment of the Hon’ble Apex Court in I.S.Sikandar (D) by LRs. v K.Subramani and others((2013) 1 SCC 27), and in the said case, the plaintiff was the defaulter and he was not ready and willing to perform his part of contract to purchase suit schedule property by paying remaining sale consideration amount to the defendants as per sale agreement.

37. Learned counsel also places reliance in the case of Premier Tyres Limited v. Kerala State Road Transport Corporation(AIR 1993 SC 1202), wherein the Hon’ble Supreme Court held that although none of the decisions were concerned with a situation where no appeal was filed against the decision in connected suit, but it appears that where an appeal arising out of connected suits is dismissed on merits, the other cannot be heard, and has to be dismissed.

38. Learned counsel placed reliance upon the judgment of Hon’ble Supreme Court in Jayakantham and others v. Abaykumar((2016) SCC 178), wherein it was held as under:

               “7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is “sound and reasonable”, to be “guided by judicial principles”. The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub-section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-section (2) of Section 20 is in the following terms:

               “20. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance—

               (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

               (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

               (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.”

39. It is contended by the learned counsel that specific relief is a discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief, but this discretion shall not be exercised in an arbitrary or unreasonable manner.

40. The learned counsel placed reliance in the case of Muddam Raju Yadav v. B.Raja Shanker (D) through LRs. and others(Civil Appeal No.3255 of 2026), wherein the Hon’ble Supreme Court held that, in the said case, both the documents were dated 04.06.2002 and purchased from the same stamp vendor and the witnesses to both the documents were also one and the same, and all these would probablise the defence of the defendant(s) that the agreement of sale was not a genuine transaction but was executed as a security for a loan transaction.

41. Lastly, the learned counsel placed reliance on the judgment of the Hon’ble Supreme Court in the case of Sevoke Properties Limited v. West Bengal State Electricity Distribution Company Limited(AIR 2019 SC 2664), wherein, by following the decision in Nopany Investments (P) Ltd. v. Santokh Singh [(2008) 2 SCC 728], held that

               “… In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant.”

42. On going through the submissions of both sides, the following points arise for consideration in this appeal:

               1) Whether the findings arrived at by the learned trial Court Judge in disbelieving Ex.A1 as the purported agreement of sale is proper, valid, and sustainable in law?

               2) Whether the appellants/plaintiffs have raised any ground challenging the findings recorded by the learned trial Court on the counter-claim filed by the defendant, and if there is no ground raised, whether those findings have attained finality ?

43. Now having heard the learned counsel on both sides and having determined the above points for consideration of this Court, this Court proceeds with the factual drop of the case.

44. The basic contention of the plaintiff is solely based on Ex.A1-agreement of sale, and scrutiny of the same, said agreement though unregistered, it is admissible in evidence so as to come to a conclusion that some amounts were paid for sale of property and even in the Ex.A1-agreement of sale, dated 14.10.1991, an amount of Rs.5,000/- was paid as advance on the said date of execution of Ex.A1 and the stamp paper was purchased on 14.10.1991. However, the second page of Ex.A1, the receipt is dated 30.10.1991 evidencing the payment of Rs.15,000/- by the plaintiff to the defendant and admittedly, both the papers were purchased on the same day, which create significance as to the contention of the defendant, as the defendant specifically pleaded that the said Ex.A1 was only a money transaction and that he signature of the defendant was taken on the blank stamp papers for security purposes only and even the signatures of wife and son of the defendant were obtained on the said stamp paper.

45. The learned trial Court Judge having examined the said Ex.A1, though stated that the document is unilateral, however, on a legal scrutiny, the document which is purported to be executed as an agreement of sale would be properly entered in between the purchaser and the vendor, and it is trite law when the document creates a suspicion as to memorandum of agreement of sale, all the contents of the said document should be properly addressed in the document specifically, wherein it has to be stated by the defendant unequivocally that he intended to sell the suit schedule property to the plaintiff for a sale consideration. It is significant to note that it is admitted fact that the defendant was the absolute owner and possessor of the suit schedule property and this fact is also not disputed by the defendant himself and though there is some discrepancy in the writings in the said agreement of sale under Ex.A1, which though do not by itself create a suspicion, but however, the facts remains that signatures of wife and minor son of the defendant were obtained on the said Ex.A1-agreement of sale, dated 14.10.1991. This creates a doubt in the mind of the Court as to the terms of the agreement of sale. In normal circumstances, a person, who is absolute owner and possessor of the property, should sign a document purported to sell the suit schedule property in favour of any prospective buyer, the signature of wife and minor son of the defendant on Ex.A1 would definitely create surrounding circumstances of suspicion, which the plaintiff has to prove the same to be an agreement of sale by proper documentation, coupled with veracity of the witness, who scribed the said document along with the attestors of the document and they should all state in one voice without any discrepancies.

46. Further, even if the plaintiff intended to avoid any multiplicity of the proceedings purported claim from wife and son of the defendant, they should have been arrayed as necessary parties to the suit, however, the suit is only filed against defendant, from whom the property was intended to be purchased. Further, when the defendant expired, his legal heirs, his wife and son are brought on record representing defendant No.1. Thus, this conduct of the party should also be taken into consideration, which plays pivotal role to determine the said agreement stands the test of legal scrutiny. Further the subsequent payments, which are alleged to have been made by the plaintiff vide Exs.A5 to A7 were not honoured, would also further establish the suspicious circumstances. More so, Ex.A3, which is a continuation of Ex.A1, wherein possession of suit schedule property was delivered to the plaintiff, was executed on Rs.30/- stamp paper. In fact, the possession of the suit schedule property would be only delivered after execution of sale deed in favour of the prospective buyer, and the delivery of possession even before the sale deed executed only when an amount of Rs.60,000/- was paid to the defendant, would also create a serious suspicious circumstances on execution of Ex.A1 to term as an agreement of sale.

47. Apparently, even Exs.A5 to A7, which are receipts evidencing a total amount of Rs.30,000/-, would reveal that the amount covered under the said cheques were dishonoured for payment and no payment was received thereafter. However, even after the dishonor of the cheques covered under Exs.A5 to A7, Ex.A8 came to be executed as if the plaintiff has paid further amount of Rs.50,000/-, which strengths suspicious circumstances and more so, Ex.A9 is one of the receipts would also show that as on the date of Ex.A9, an amount of Rs.1,80,000/- has been paid to the defendant and by the said Ex.A9, another Rs.50,000/- was paid vide cheques drawn on State Bank of Hyderabad, for various amounts, is also not convincing and in all counts. All these circumstances cumulatively strength the suspicion on Ex.A1 to be an agreement of sale executed in unequivocal terms to sell the schedule property to the plaintiff.

48. In all the circumstances, the categorical assertion of the defendant that the said transaction is only a money transaction and his signatures were obtained on the stamp papers cannot be brushed aside in the absence of proper evidence on behalf of the plaintiff and the contentions of the defendant that it was money transaction appears to be germane and valid. Though the plaintiff has issued notice dated 11.04.1992 along with telegraphic notice vide Ex.A12 calling upon the defendant to execute a sale deed along with Ex.A13-legal notice, dated 02.03.1995, cannot in no help the plaintiff to succeed in the suit.

49. It is trite law an agreement to sell an immovable property should be executed and entered by parties in unequivocal terms and when once suspicion is created on the said agreement, the party enforcing it should dispel the suspicion. More particularly specific performance is a discretionary relief, the conscience of the Court should be satisfied by a cogent and proper evidence. Mere issuance of said notices will not come to the rescue of the plaintiff for grant of relief prayed and it is a settled law that Section 16(c) and 20 of the Specific Relief Act, 1963, categorically states that the plaintiff should always be ready and willing to perform his part of obligations and more so, under Section 20, relief of specific performance is only discretionary and equitable relief. It is settled law that agreement of sale purportedly executed by the defendant in favour of the plaintiff should amply be proved and no suspicious circumstances has to be existence for granting of such relief as earlier held by this Court. In the instant case, the plaintiff has not properly established and dispel the suspicious circumstances, more particularly, the findings arrived at in the foremost paragraphs, and that further, since some payments covered under vide Exs.A5 to A7 were dishonoured, the contentions of the defendant that the said transaction is a money transaction appears to be highly probable and dishonor of the cheques covered in Exs.A5 to A7 makes the suspicion on Ex.A1 more significant.

50. In that view of the matter, in the absence of agreement of sale in unequivocal terms purportedly for the sale of schedule property, this Court cannot extend the benefit of discretionary and equitable relief in favour of the plaintiff. More so, when the genuineness of the transaction itself is doubtful, and when the contention of the defendant that it was a money transaction is not properly dispelled by the plaintiff, and for all those counts, in considered opinion of this Court, the findings arrived at by the learned trial Court are proper, valid and does not interfere by this Court and the plaintiff has not placed any substantial ground for interference by this Court.

51. Insofar as the counter-claim is concerned, the defendant’s version was that, since it was a money transaction, the possession of the property was delivered to the plaintiff so as to give it as security for the amount advanced and out of the said advance under the said transaction, an amount of Rs.5,000/- would be adjusted as rent per month. However, the learned trial Court Judge though has not dealt with said issue with categorical findings, and it is trite law that counter-claim should also be tried like a suit, but a close scrutiny of the memorandum of grounds of appeal in as many as 15 grounds are raised, there is no challenge by the plaintiff in respect of allowing of the counter-claim by a specific ground.

52. However, subsequently since the appeal was dismissed on the ground that one appeal is not maintainable, the plaintiff has filed an application to recall the said order and this Court after properly appreciating the facts, has recalled the said order and posted the matter for hearing. However, though application was filed for proper Court fee for counter-claim vide I.A.No.1 of 2023, however, the fact remains that Court fee was paid, but no additional grounds challenging the counter-claim was placed by the appellants/ plaintiffs. In the absence of any challenge to the decree allowing the counter-claim, the said decree has attained the finality and this Court cannot go into the merits of the counter-claim, allowed by the trial Court. In that view of the matter, the Appeal to the extent of counter-claim is also liable to be dismissed.

53. In the light of above stated facts and circumstances and findings, the Appeal is devoid of merits and is liable to be dismissed.

54. Accordingly, the Appeal is dismissed, by confirming the judgment and decree, dated 22.07.2003 along with Appeal against counter-claim in O.S.No.118 of 1995 passed by the Principal Senior Civil Judge, R.R.District at NTR Nagar, Hyderabad.

55. There shall be no order as to costs. Pending miscellaneous applications if any shall stand closed.