Dr. Arijit Pasayat, J
Challenge in these
appeals is to the common judgment passed by a learned Single Judge of
the Andhra Pradesh High Court disposing of two appeals arising out of
common judgment made in OS No. 350 of 1982 on the file of learned Second
Additional Subordinate Judge-Vishakapatnam and in OS No. 131 of 1982 on
the file of the same Court.
in a nutshell are as follows:
One Thangirala Venkata Avadhani filed O.S.No.131/82 for recovery of
possession of the plaint schedule property after evicting the defendants
and for the relief of permanent injunction and O.S.No.350/82 was filed
by one Sudhakar Rao against Thangirala Venkata Avadhani and certain
others for the relief of specific performance of an oral agreement of
sale relating to the plaint schedule property. The said Thangirala
Venkata Avadhani died during the pendency of the said suits.
T.A.Kameswari, the appellant in both appeals before the High Court, had
been brought on record as the legal representatives of the said Venkata
Avadhani. In O.S.No.131/82 the said Venkata Avadhani as plaintiff had
pleaded that the staff of Andhra University formed a Co-operative
Society. The said Society purchased from her Highness Janaki
Ratnayammajee. CBE, Dowager Rani Saheba of Gangapur Ac.8.80 cents
forming part of T.S. No.125 (part) of Waltair Ward in Visakhapatnam
Municipality. The said Society allotted a plot to the 1st plaintiff,
i.e. Plot No.30, in the said lay-out by means of a registered sale deed
dated 30.11.1967 and delivered possession.
To the South of the
Plot No.30 there is Plot No.31. The 1st plaintiff came to learn that the
defendants purchased this plot. In the plot purchased by the defendants
they constructed building. While constructing the said building, as
their plot was having road on three sides, they requested the 1st
plaintiff for permission to stock their sand, stone and granite and
bricks in the site of the plaintiff and as the site of the 1st plaintiff
was vacant he said no objection and in utter good faith he gave the said
permission. Suddenly on the evening of 10.5.1982, the 1st plaintiff was
informed that the defendants were constructing a compound wail on the
East and West of the 1st plaintiff's plot No.30. He also found that the
foundations were dug and the stone was laid in the foundation both on
Eastern side and Western side. On the early morning he immediately gave
a report to the III Town Police Station. Along with the 1st plaintiff a
police constable came and the 1st plaintiff found that the Eastern
compound wall was completed and in the Western compound wall the
construction with bricks was started on the basement raised on 10th May,
1982. The police informed them not to do any construction but later they
began construction even in spite of the police warnings. The plaintiff
never sold the site nor agreed to sell the same to any body including
the defendants. He is absolute owner of the property.
The 1st defendant
filed written statement inter-alia stating that 1st defendant's correct
name is I.B.V. Narasimharao and not I. Narasimharao as mentioned in the
plaint. It was stated that this defendant's mother-in-law was one
Kotagiri Srivara Manga Tayaramma. She wanted to acquire two plots at
Visakhapatnam and asked this defendant to arrange the purchase of two
plots at Visakhapatnam.
defendant approached the plaintiff on behalf of the mother-in-law and it
was agreed that the plaintiff should sell 665 sq.yards of the property
covered by Plot No.30 to Manga Tayaramma at Rs.65/- per sq.yard for a
total consideration of Rs.42,575/-. The said oral agreement of sale was
entered into between the plaintiff and Smt. Manga Tayaramma represented
by this defendant as her agent in the last week of November, 1979 at the
plaintiff's residence in Visakhapatnam. This defendant paid an a amount
of Rs.16.575/- towards part of the sale consideration to the plaintiff
on behalf of the vendee, his mother-in-law in the last week of November,
1979 and the plaintiff delivered possession of the schedule property to
this defendant representing the vendee-his mother-in-law. The plaintiff
in fact noted down on a piece of paper and calculated the total sale
consideration for 665 sq. yards at Rs.65/- per sq.yard and arrived at
the figure of Rs.42.575/-. He wrote the name of this defendant as 'I.Narasingarao'
on the top of the said slip of paper and he also noted the sale
consideration as plaintiff delivered the slip of paper to this defendant
at that time.
The 1st defendant
stated that plaintiff required him to obtain a demand draft for
Rs.26,000/- being the balance. of sale consideration payable to him and
he also agreed to execute and register the necessary sale deed in favour
of the vendee Smt. Manga Tayaramma within a week after the oral
agreement of sale and promised to obtain the required clearance for the
sale of schedule property under the provisions of the Urban Land Ceiling
Act, 1976 (in short 'ULC Act') at the cost of the vendee i.e. Manga
Tayaramma. Further, it was agreed that the Demand Draft of Rs.26,000/-
should be handed over to the plaintiff at the time of registration of
the sale deed. This defendant's mother-in-law Manga Tayaramma in
pursuance of the said oral agreement of sale obtained a draft for an
amount of Rs.26,000/- in favour of the plaintiff. This defendant
thereupon approached the plaintiff immediately after 3.12.1979 and had
shown to him the Demand Draft and asked him if he had obtained the
required clearance from the Urban Land Ceiling Authority.
thereupon stated that he did not obtain the required clearance as yet
and promised to execute and register the sale deed as soon as he
obtained the clearance. The 1st defendant pleaded that it is only the
plaintiff that did not perform his part of the contract and caused
breach of the terms of the contract and ultimately choose to deny the
existence of the contract. On 10.12.1979, the 1st defendant, Manga
Tayaramma purchased plot No.31. He pleaded that in fact a wall was
constructed on the Eastern side for both the plot Nos.30 and 31 and
likewise another wall on the West was constructed to both the said plot
Nos.30 and 31. As both the plots originally belonged to the same owner
Manga Tayaramma, no wall was constructed in between the two plots.
Further the wooden material for the proposed building was stocked in the
site of Sri Gangapur Rani, which is situated to the South of Plot No.31.
It is false to state that the defendants requested the plaintiff for
permission to stock their sand and stone in the plaint schedule site.
Plaintiff is not entitled either for delivery of possession or for a
permanent or mandatory injunction.
The 2nd defendant in
the said suit also filed a written statement stating that he was
unnecessarily impleaded as a party.
On the strength
of the above pleadings, the following issues were settled:
1 Whether the plaintiff is entitled to possession'?
2 Whether the plaintiff is entitled to prohibitory and mandatory
injunction as prayed for?
3. To what future damages, if any, and at what rate the plaintiff is
4. Whether the suit is bad for non-joinder of necessary parties?
5. Whether the plaintiff is estopped?
6. To what relief?
As stated supra,
I.V.R. Sudhakar Ras filed O.S.No.350/82 for the relief of specific
performance on the strength of an oral agreement of sale and the
plaintiff in the said suit pleaded as follows:
mother Manga Tayaramma wanted to acquire two house plots at
Visakhapatnam and requested her son-in-law to arrange the purchase of
the same for the construction of house at Visakhapatnam. Consequently,
plaintiff's father approached the 1st defendant on behalf of Manga
Tayararnma. The 1st defendant agreed to sell the schedule site at
Rs.651/- per sq. yard and for a total consideration of Rs.42,575/-. The
said oral agreement of sale was entered into between the 1st defendant
and the plaintiff's maternal grand mother in the first week of November
1979 at the Ist defendant's residence in Visakhapatnam. At the time of
oral agreement, Sri. I.B.V. Narasimharao paid an amount of Rs.16,575/-
to the 1st defendant towards portion of the sale consideration on behalf
of vendee Manga Tayaramma in the presence of Sri Rao Venkatarama
Narasimharao. After the death of Manga Tayaramma plaintiff as legatee
has been in possession of the site as per the will executed by her on
15.4.1980. After receiving the said amount of Rs.16,575/-, the Ist
defendant at the time of the said agreement of sale noted down on a
piece of paper and calculated the total sale consideration for 655 sq.
yards at Rs.65/- per sq. yard and arrived at the figure of Rs.42,275/-.
He wrote the name of
the vendees' agent and son-in-law as '1.Narasimharao' on the top of the
said slip of paper and he also noted the sale consideration at the rate
of Rs.40/- per sq.yard. As per the terms of the said agreement of sale,
it was also agreed that the vendee Manga Tayaramma should obtain a
demand draft for the balance of sale consideration of Rs.26,000/- in
favour of the Ist defendant and the defendant should obtain the required
permission from the urban ceiling authority and execute the registered
sale deed within about a week after the said oral agreement of sale. It
was further agreed that the said demand draft should be handed over to
the defendant at the time of the registration of the sale deed. In
pursuance of the said agreement of sale, Manga Tayaramma obtained a
demand draft for an amount of Rs.25,000/- in favour of the Ist defendant
on 3.12.1979. The defendant stated that he did not obtain the permission
as yet that it would take some time and promised to execute and register
the sale deed as soon as the permission is obtained. Plaintiff also
pleaded that on 10.12.1979, I.B.V. Narasimharao on behalf of late Manga
Tayaramma purchased plot No.31 which is situate to the South of the
schedule plot and the said Tayaramma took possession of the same. The
Ist defendant filed suit O.S. No. 131/82 against the plaintiff and
others completely denying the agreement of sale. Since the Ist defendant
came forward with a false case denying the agreement of sale in its
entirety, the plaintiff filed this suit.
The 1st defendant in
the said suit filed a written statement with the following allegations.
The allegations that
the plaintiff's father approached the 1st defendant for purchase of site
and the 1st defendant agreed to sell the site at Rs.65/- per sq. yard,
that the total sale consideration was Rs.42,575/-, that the oral
agreement was entered into between the them, are false and denied. The
allegations that at the time of oral agreement Narasimharao paid
Rs.16,575/- to this defendant towards a portion of sale consideration on
behalf of Manga Tayaramma, that the plaintiff as a legatee was in
possession of the site as per the will executed by her on 15.4.1980, are
not valid and tenable under law. The allegations that after receiving
the amount of Rs. 16,5751- at the time of agreement of sale, this
defendant noted down on a piece of paper and calculated the total sale
consideration for 655 sq yards at Rs 65/- per sq yard and arrived at a
figure of Rs 42,575/-, that he wrote the name of the vendee's agent and
son-in-law was Narasimharao on the top of the slip of paper, that he
also noted the sale consideration at the rate of Rs.40/- per sq.yard,
that the lst defendant delivered the slip of paper to Narasimharao at
that time, are false and invented for the purpose of the suit. The
allegations that as per the agreement of sale it was agreed that
Tayaramma should obtain a demand draft for the balance of sale
consideration of Rs.26,000/- in favour of the Ist defendant that the Ist
defendant should obtain the required permission from the urban ceiling
authority for execution and registration of the sale deed, that the
defendant promised to obtain the said permission and execute the
register sale deed, that he agreed to do so within about a week, are all
invented for the purpose of the suit.
allegations that Thayaramma in pursuance of the agreement of sale
obtained a demand draft for an amount of Rs.25,000/- in favour of the
Ist defendant on 3.12.1979, that she sent the same to Narasimharao to
approach the lst defendant to complete the transaction and execute the
sale deed duly registered by this defendant, that the 1 defendant stated
that he did not obtain the permission yet, that it would take some time
and promised to execute and register the sale deed as soon as the
permission is obtained, are utterly false. The allegation that on
10.12.1979 Narasimharao on behalf of Thayaramma purchased Plot No.31 and
took possession of the same, that it devolved in Ramachandra Rao is
denied and the plaintiff is put to strict proof of the same. This suit
is only a counter-blast to O.S.No.131/82 on the file of IInd Additional
Subordinate Judge's Court, Visakhapatnam. The plaintiff is not entitled
for any relief whatsoever.
On the strength
of the respective pleadings, the following issues were settled in the
suit for specific performance:
1. Whether the alleged oral agreement of sale and payment of Rs.16,575/-
towards portion of sale consideration to defendant No.1 as pleaded by
plaintiff in his plaint are true?
2. Whether the plaintiff is entitled to sue the defendants?
the plaintiff is entitled to the relief of specific performance of the
alleged suit contract as prayed for?
4. Whether the plaintiff is entitled to claim Rs.46,000/- towards
damages for breach of contract of sale?
5. To what relief?
Since the subject
matter of both the suits was one and the same, the suits were disposed
of by a common judgment after recording the evidence of PW-l to PW-3, DW-l
to DW-3 and after making Exs.A-l to A-3 and Exs.B-l to B-5 and the Court
of first instance had believed the oral agreement of sale and had
decreed the suit, O.S.No.350/82 and had dismissed the other suit filed
for possession and other reliefs i.e. O.S.No. 131/82, and as already
stated supra, Thangirala Venkata Avadhani was examined as PW and
subsequent thereto since he died the legal representative T.A.Kameswari
was brought on record and aggrieved by the said common judgment and the
decree made therein the appellant had preferred appeals before the High
Court and since the subject matter was considered to be one and the
same, both the appeals were disposed of by the High Court by the common
judgment which is assailed in the present appeals.
The High Court
formulated the following points for consideration:
"1. Whether there was an oral agreement of sale and payment of
Rs.16,575/- towards a portion .of the sale consideration as contended by
the 1st respondent in A.S.No.753/89?
2. Whether the appellant in A.S.No.1014/89 is entitled to the relief of
possession and the other ancillary reliefs prayed for in the said suit
3. Whether the plaintiff in O.S.No.350/82 is entitled to the
discretionary relief of specific performance?
4. Whether the plaintiff in O.S.No.350/82 is entitled to the alternative
relief of Rs.46,000/ towards damages for breach of contract of sale?
5. If so, to what reliefs the parties are entitled to?"
The High Court held
that the evidence is not of a very clear proof. The payment of advance
amounting to Rs.16,575/- was established. Therefore, the alternative
relief in favour of plaintiff in OS No. 350 of 1982 i.e. refund of
Rs.16,575/- with interest at the rate of 12% p.a. from the date of
payment of the amount till the date of realization, was granted. It was
directed that there shall be a charge over the plaint schedule for
realization of the said amount. So far as the other suit is concerned,
it was held that the suit OS No. 350 of 1982 for the relief of specific
performance was to be decreed to that extent. The plaintiff in OS No.131
of 1982 was entitled to the decree of possession and ancillary reliefs.
Appeal was accordingly disposed of.
In support of the
appeals, learned counsel for the appellant submitted that the ordinary
rule is that the prayer for specific performance of the agreement is to
be granted and only on equitable considerations the same can be refused.
Reliance is placed in this context on Prakash Chandra v. Angadlal and
Others [1979(4) SCC 393]. Though there was no direct evidence, other
evidence taken note of by the trial court should not have been lightly
brushed aside by the High Court and therefore the alternative relief
should not have been granted and the main relief prayed for should have
been granted. The effect of the Section 53(A) of the Transfer of
Property Act, 1882 (in short the 'T.P. Act') has not been taken note of.
There is no
appearance on behalf of the respondent though counter affidavit has been
First it would be
necessary to deal with the effect of Section 53(A) of the T.P. Act. It
is fairly accepted that in the case of an oral agreement of sale the
defence under Section 53(A) of the TP Act is not available to a party
who alleges to be in possession of the property.
The High Court has
rightly concluded that there is no clear proof relating to the other
terms of condition. The relief of specific performance is discretionary
relief and except the oral evidence, there is no clear evidence to prove
several of the essential terms which have been taken note of by the High
Court. The High Court, on analyzing the evidence, has come to hold that
except Exhibit B-1 and the oral evidence of DW 1 and DW2, there is no
other clear proof relating to the other terms and conditions of the
contract which can be termed as essential conditions like delivery of
possession and also the obtaining of permission from the Urban Land
Ceiling Authorities and therefore, it cannot be said that all the
essential terms and conditions of a well concluded contract had been
established in the case at hand.
These conclusions on
fact do not appear to be in any way unsustainable and on the other hand
are in line with the applicable legal principles. That being so, the
appeals are sans merit, deserve dismissal which we direct. No costs.
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