IMPORTANT POINT
The relief of specific performance is discretionary relief and where except the oral evidence, there is no clear evidence to prove several of the essential terms and conditions of a well concluded contract, the Court was justified in granting alternative relief of payment of advance amount deposited.

Headnote:(i) Specific Relief Act, 1963 — Section 16 — Suit for specific performance — Oral agreement of sale — Failure to prove all the essential terms and conditions of the alleged contract — Order for refund of earnest money with interest — One ‘TVA’, predecessor of respondents filed a suit for recovery of possession of plaint schedule property after evicting defendants — Appellant filed suit against ‘TVA’ for relief of specific performance of an oral agreement of sale relating to plaint schedule property — ‘TVA’ died during pendency of suits — ‘TVA’ claimed that he never sold the site nor agreed to sell the same to anybody including appellants herein — However, appellants claimed that an oral agreement of sale was entered into between the appellant original owner of property represented by TVA and that they paid an amount of Rs. 16,575/- towards part of sale consideration — Since subject matter of both the suits was one and the same — Suits were disposed of by a common judgment — High Court granted relief of refund of Rs. 16,575/- with interest — Respondents held entitled to decree of possession — Whether in case of an oral agreement of sale the defence u/s 53A of the Transfer of Property Act is available to a party who alleges to be in possession of the property — (No) — Whether judgment of High Court is sustainable — (Yes) — Transfer of Property Act, 1882 — Section 53A.
       Held : 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. (Para 16)
       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. (Para 17)
       (ii) Transfer of Property Act, 1882 — Section 53A — Doctrine of Part Performance — Oral agreement of sale — Defence u/s 53A of the Act is not available to a party who alleges to be in possession of the property. (Para 16)

JUDGMENT

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.

2. 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.

3. 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.

4. 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-la

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2007 Supreme(SC) 528

Cases Referred (1)