IMPORTANT POINT
Specific performance of an oral agreement requires clear evidence of readiness and willingness, and costs should not be awarded to parties lacking absolute ownership.

JUDGMENT :

Venuthurumalli Gopala Krishna Rao, J.

The appeal is filed against the judgment and decree dated 14-6-2004 passed by the learned I Additional District Judge, Visakhapatnam, in O.S.No.27 of 1998 to the extent of awarding costs in favour of the defendants. The suit is filed for the relief of specific performance of an oral agreement of sale in respect of suit schedule vacant site and for permanent injunction restraining the defendants 1 and 2 from interfering with the plaintiff’s permissive possession of the suit schedule site and for costs.

2. The case of the plaintiff as narrated in the plaint, in brief, is as follows:

(a) It is pleaded that the plaintiff is a builder of repute in and around Visakhapatnam and he is doing apartments constructions business. The defendants 1 and 2 are brothers and owners of the plaint schedule vacant site having succeeded to the same on the death of their father. The 2nd defendant is a permanent resident of Raipur. The 1st defendant, who is the elder brother, is representing the family. He was the head of the family, held deliberations with the plaintiff for the sale of the schedule property, in the presence of a mediator by name N. Appala Naidu.

(b) It is further pleaded that the defendants offered to sell the suit schedule property for a total consideration of Rs.8,38,800/- i.e. at the rate of Rs.1,800/- per square yard. The plaintiff agreed for the same. In pursuance of the discussions, the plaintiff made a payment of Rs.10,000/- as advance on 11-10-1997 at 12.00 Noon for auspicious reasons and the 1st defendant having received the same, executed a receipt dated 11-10-1997 mentioning inter alia the location and extent of the site and also agreed rate per square yard. The said receipt was attested by the witness. At that time, the 1st defendant made the plaintiff to believe that he as an elder brother would convince his younger brother, the 2nd defendant, to execute a sale deed in favour of the plaintiff, after receiving the balance of sale consideration. The 1st defendant also promised to obtain encumbrance certificate, legal heir certificate and clearance certificate from Urban Land Ceiling Authorities with related link documents by the time of visit of the 2nd defendant to Visakhapatnam, so as to enable them to execute a sale deed in favour of the plaintiff or his nominee by January, 1998.

(c) It is further pleaded that subsequently during December, 1997 when there were encroachments into the suit schedule site, the 1st defendant intimated the same to the plaintiff and requested to get the encroachers evicted, cleaned, level and demarcate the property and thus had given permissive possession of the suit schedule property to the plaintiff. The plaintiff got cleaned and leveled the suit schedule property and erected cement poles by expending Rs.8,150/- under a receipt dated 07-01-1998 issued by the contractor who did the work.

(d) It is further pleaded that the plaintiff having secured the balance of sale consideration, called upon the defendants during pongal season to intimate their convenient date for executing a registered sale deed and at that time, expressed readiness and willingness to perform his part of the contract. At that time, the defendants turned adamant and hostile and began avoiding the plaintiff. The plaintiff got issued a registered notice dated 27-01-1998 to the 1st defendant. The defendants did not issue any reply. Then the plaintiff got made a paper publication in Eenadu Telugu Daily dated 28-01-1998. On 25-02-1998, the defendants made hectic efforts to dispossess the plaintiff from the suit schedule site. Hence, the suit.

3. Brief averments in the written statement filed by the 1st defendant are as follows:

(a) It is contended that the 1st defendant never approached the plaintiff. There was never any mediation by any person, much less Appala Naidu. The plaint schedule property is the self acquired property of late Narasimha Murthy, father of the defendants. He died int