Sudhakara Rao & Ors Vs. T.V. Kameswari  Insc 423 (18 April 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
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 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
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
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:
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 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
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?
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
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
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 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.