SREENIVASA COOPERATIVE BUILDING SOCIETY versus PUVVADA RAMA (DEAD) BY LRS. AND ORS.

Citation: [2018] 7 S.C.R. 1232 · Decided: 31-07-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 7 S.C.R.
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY
v.
PUVVADA RAMA (DEAD) BY LRS. AND ORS.
(Civil Appeal No. 6620 of 2008)
JULY 31, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Specific performance: Agreement of sale of land – Suit for
specific performance of sale agreement in respect of land – On
facts, suit for specific performance of sale agreement filed by
appellant-society – Dismissed by the courts below since the
appellant failed to prove execution of the suit agreement, payment
of earnest money in furtherance of those agreements and also
being put in possession of the suit property – On appeal, held:
Execution of suit agreement was not proved – Appellant cannot be
permitted to take the relief sans proof of execution of suit
agreements in respect of which the relief of specific performance is
sought – There was absence of a valid and subsisting agreement
operating between the parties – Neither of the agreement was a
registered document – No relinquishment deed has been executed
by vendees who were party to the alleged initial agreement –
Furthermore, appellant failed to prove the factum of possession –
In view thereof, no relief can be granted to the appellant – As
regards prayer sought by the appellant for refund the earnest money
paid to them in furtherance of the suit agreements, ordinarily it
could be  considered but in the peculiar facts of the instant case, it
may not be possible to entertain the same.
Constitution of India: Art. 136 – Exercise of jurisdiction
under – Concurrent finding of fact recorded by the courts below
against appellant – Held: Merely because two courts have taken a
particular view on the material issues, that by itself would not
operate as a fetter on this Court to exercise jurisdiction
u/Art.136.
  [2018] 7 S.C.R. 1232
1232
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Dismissing the appeals, the Court
HELD: 1. It is incomprehensible as to how the order passed
by the High Court disposing of the first appeal without any
adjudication can, by any standard, be considered as adverse to
the defendant either in the matter of final decree or any finding
recorded by the trial court whilst dismissing the suit. As a result,
Civil Appeal No.6625 of 2008 is devoid of merit, and is not
maintainable. [Para 12] [1240-D]
2.1 In Civil Appeal No.6620 of 2008, the High Court has
affirmed the findings of facts and the conclusion recorded by the
trial court on material issues against the appellant/plaintiff. In
that sense, the subject appeal questions the concurrent finding
of fact recorded by the two Courts against the appellant/plaintiff.
Merely because two courts have taken a particular view on the
material issues, that by itself would not operate as a fetter on this
Court to exercise jurisdiction under Article 136 of the
Constitution. [Para 13] [1240-E-F]
2.2 The adverse findings recorded by the two courts below
against the appellant/plaintiff is based on the indisputable facts,
such as neither were the attestors and scribe to the suit
agreements examined to prove execution thereof by the real
owners of the property nor was any explanation or justification
forthcoming for such failure. The suit agreements are
unregistered. The defendants have denied having signed any such
agreement. No attempt was made by the appellant/plaintiff to
confront the defendants and discharge the burden by examining
any handwriting expert. The appellant/plaintiff failed to produce
any document to show that the nine members in whose favour
the initial alleged agreement was executed, have relinquished
their possession in favour of the appellant/plaintiff. The co-owner
of the property (5th defendant) was neither joined as party in the
suit agreement, nor was his authority for execution of such
agreement forthcoming. The other two purchasers, along with
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
LAKSHMI SREENIVASA COOPERATIVE BUILDING SOCIETY
v. PUVVADA RAMA (D) BY LRS.
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SUPREME COURT REPORTS
[2018] 7 S.C.R.
property. The appellant/plaintiff did not file any document to show
that the cheque was encashed and availed by defendant No.4 as
payment in respect of the suit agreement. No endorsement was
taken on the initial suit agreement, either of the vendors or
vendee before or at

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