K. Umamaheswaram JUDGMENT
K. Subba Rao, J.
1. This is a Plaintiff's appeal against the decree and judgment of the Court of the Subordinate Judge of Bapatla in O.S. No. 66 of 1949, a suit filed by the Appellants for specific performance of a contract, dated 4th December 1947, executed by the 1st Defendant in favour of the 1st Plaintiff.
2. The undisputed facts may be briefly stated. The plaint schedule property is of the extent of 6 acres. This land along with Ors. was originally owned by Upadrashta family. Upadrashta Ramayya's wile Vcenkata Lakshmamma and Upadrashta Venkatarama Sastri executed a mortgage in respect of 60 acres, including the suit land, in favour of the 2nd Defendant under Ex. B-7, dated 26th March 1928. The mortgagors from time to time sold away the properties to third parties and a balance of 11 acres remained in Venkatarama Sastri's hands in the year 1939. In execution of a decree against Venkatarama Sastri obtained by the 1st Defendant in O. S. No. 213 of 1930, he attached the said extent of 11 acres and brought them to sale. Even those 11 acres were nominally sold in the name of Venkatarama Sastri's wife and daughter. They filed claim petitions and they were dismissed.
When they filed suits to set aside the claim orders, they were also dismissed, for default. The said extent was purchased in Court sale in the name of Garikapati Raghavayya. Exhibit B-1, dated 7th December 1942, is the sale certificate. Under Ex. B-2, dated 29th October 1945, Garikapati Raghavayya sold the plaint schedule property to the 1st Defendant for a sum of Rs. 2,445. The sale-deed contains a recital that the vendor would be liable for any loss that might be sustained by the vendee, if any defect was noticed in the title of Venkatarama Sastri, or if any decision was passed at a future date that any alienations effected by him prior to the attachment would be binding on the auction purchaser. Raghavayya also sold 1 acre and odd out of the 11 acres purchased by him in Court sale under Ex. A-4, dated 24th June 1944, to Upadrashta Venkayya and Ors. On the same date, the mortgagee executed, Ex. A-12 in favour of the purchasers releasing the, said extent from the mortgage. It is recited therein that, as regards the amount due to him under the mortgage deed, he shall recover the same from the property other than the property released thereunder. Exhibit A-4 was attested by the 1st Defendant. Venkatarama Sastri also filed affidavits in the claim suits to the effect that the mortgage was subsisting.
It is in evidence, though there is no positive proof, that Venkatarama Sastri also filed contradictory statements stating in some other connection that the mortgage was discharged. On 4th December 1917, the 1st Defendant executed the contract of sale Ex. , A-1, in favour of the 1st Plaintiff, agreeing to sell the plaint schedule extent of 6 acres for a sum of Rs. 11,400. Exhibit A-1 recites that Rs. 1,500 was paid to the 1st Defendant as an advance on the date of Ex. A-1 and the property was put in possession of the 1st Plaintiff. It also contains a statement that, if; in respect of the said property any dispute arises from anyone, the vendor shall settle it at his own expense. The balance of the amount was agreed to be paid within a month of the contract and in default it would carry interest at the rate of Re. 0-8-4 per cent, per mensem. Exhibit A-1 was written by D.W. 2 and attested by P.W. 4. The endorsement on Ex. A-1 shows that, on 14th January 1948, the 1st Plaintiff paid a sum of Rs. 2,000 and, on 2nd February 1948, a sum of Rs. 1,000 to Veerayya towards the consideration amount.
3. From 2nd February 1948, till 16th September 1948, there is no documentary evidence to show any progress in the matter of the implementation of the contract. On 16th September 1948, the 1st Plaintiff entered into a contract of sale Ex. A-14 in favour of the 2nd Plaintiff agreeing to sell the plaint schedule property to him. On 3rd October 1948, the 1st Defendant gave a wire to 1st Plaintiff informing ........