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CASE NO.: Appeal (civil)  8303-8304 of 2003

PETITIONER: V.R. Sudhakara Rao & Ors

RESPONDENT: T.V. Kameswari

DATE OF JUDGMENT: 18/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

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.

Background facts 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

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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.

Consequently, this 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. The plaintiff 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

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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 entitled to?

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:

Plaintiff’s grand 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

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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. The further 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? 3. Whether the plaintiff is entitled to the relief of specific  performance of the alleged suit contract as prayed for?

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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 O.S.No.131/82?

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

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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 filed.

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.