B. SUDERSHAN REDDY, J.

( 1 ) THE defendants in O. S. No. 1749 of 1989 on the file of the leaned IV Additional judge, City Civil Court, Hyderabad are the appellants in this appeal. The learned trial judge decreed the suit for specific performance of agreement of sale filed by the respondent-plaintiff. Hence this appeal.

( 2 ) WE shall refer to the parties as plaintiff and defendants throughout this judgment.

( 3 ) BEFORE adverting to the question as to whether the impugned judgment under appeal suffers from any errors and legal infirmities, it may be required to notice the relevant facts.

( 4 ) IT is the case of the plaintiff that she has entered into an oral agreement of sale with the plaintiff (sic. 1st defendant) on 17-9-1989 in respect of house plot admeasuring 354. 66 square yards bearing plot No. 17 situate at road No. 2, Banjara Hills, Hyderabad (for short the said property ) for a sale consideration of Rs. 3,50,000. 00. The 1st defendant received a sum of Rupees One lakh from the defendant (sic. plaintiff) as advance and acknowledged a receipt to that effect on a non-judicial stamp of Rs. 5. 00 in the presence of P. W. 2 and the mother of the 1st defendant. The document is marked as ex. A-1 dated 17-9-1989. It is also her case that originally she intended to pay only a sum of Rs. 50,000. 00 as advance but the 1st defendant insisted that another sum of rs. 50,000/- may be given to him as he was in need of money. The plaintiff paid a further sum of Rs. 50,000. 00 on the very same day i. e. to say on 17-9-1989.

( 5 ) IN the plaint itself, it is stated that the 1st defendant has shown all the original title deeds of the vendor. It is admitted that the 2nd defendant is the true and absolute owner of the property agreed to be sold. The 2nd defendant is alleged to have entered into an agreement of sale dated 5-1-1988 in favour of the 1st defendant.

( 6 ) IT is also the case of the plaintiff that the 1st defendant having obtained the agreement of sale dated 5-1-1988 got the sanction for construction of building from the Municipal Corporation of Hyderabad in his name and accordingly, started construction of a house in the said property.

( 7 ) IT is the specific case of the plaintiff that"defendant No. 1 agreed to sell orally the suit property to this plaintiff on 17-9-1989 and the total consideration was fixed after bargaining at Rs. 3,50,000- and out of which the defendant No. 1, received rupees one lakh as advance amount". The plaintiff got issued telegraphic notice dated 25-9-1989 ex. A-2 to defendant No. 1 requiring him to execute the sale deed in her favour after receiving the balance of sale consideration. The 1st defendant received the telegraphic notice vide acknowledgment Ex. A-3. The 1st defendant did not reply to the said notice. It is under those circumstances, the plaintiff laid the suit for specific performance of the agreement of sale.

( 8 ) THE defendants filed common written statement inter alia disputing the correctness of allegations and averments made in the plaint. It is specifically pleaded that the 2nd defendant is the owner of the property and the 1st defendant is only an agreement holder. It is also stated that the 1st defendant never entered into any agreement of sale as alleged by the plaintiff but borrowed a sum of Rupees One Lakh on account of personal necessity from the plaintiff. The amount of rupees One Lakh received by defendant no. 1 from the plaintiff on 17-9-1989 is nothing but a loan. Ex. A-l is not an agreement of sale and the same is unenforceable. It is the further case of the defendants that"defendant No. 1 signed on blank stamp paper of Rs. 5- non-judicial at the places shown by the plaintiff".

( 9 ) IN view of the rival pleadings, the learned trial Judge framed the following issues for consideration (1) Whether the oral agreement of sale dated 17-9-89 set up by plaintiff is true, valid and binding on defendants? (2) Whether 1st defendant did not receive the sum of Rs. One lakh as part

Click Here to Read the rest of this document