The plaintiff's failure to prove the essential terms of the alleged oral agreement of sale and the unavailability of the defense under Section 53-A of the Transfer of Property Act led to the dismissal of the suit for specific performance.

Ms. R. BANUMATHI, J.

This appeal arises out of judgment made in O.S. No. 295 of 2004 on the file of the Additional District Judge-Fast Track Court No. II, Kancheepuram dismissing the plaintiff’s suit for specific performance based on an oral agreement of sale. The unsuccessful plaintiff is the appellant. For the sake of convenience, the parties are referred to as arrayed in the suit.

2. Briefly stated case of plaintiff is as follows:

Defendant agreed to sell the plaint schedule property to the plaintiff for sale consideration of ` 15,37,200/- on 16.2.1992 by way of written sale agreement. Alleging that defendant failed to comply with the terms and conditions of agreement, plaintiff filed O.S. No. 1565 of 1992 for permanent injunction and also O.S. No. 367 of 1993 seeking for a mandatory injunction to restore the electricity service connection. Further case of plaintiff is that when parties to the above said two suits were frequently visiting the Court, they came to an understanding to settle the issue out of Court and accordingly a Panchayat was convened in the Court premises, on 22.2.2002 in which six persons including plaintiff and defendant took part and it was agreed that in continuation of earlier sale agreement dated 16.2.1992, the defendant agreed to execute the sale deed for ` 16,00,000/-. In addition to ` 1,00,000/- advance paid on the earlier agreement of sale, plaintiff paid another sum of Rs.35,000/- on 22.2.2002 and altogether defendant received sum of ` 1,35,000/- as on 22.2.2002. There was a sale deed executed by the defendant in favour of one Rajendran on 16.10.1995 and the defendant assured the plaintiff that he will take appropriate steps to cancel the said sale deed and execute a full fledged sale deed in favour of the plaintiff. Plaintiff has further averred that inspite of repeated requests, defendant was evading to execute the sale deed. After issuing Exhibit A-4 notice (16.6.2002), plaintiff filed the suit for specific performance.

3. Stoutly denying any such oral agreement on 22.2.2002, defendant filed written statement contending that defendant is the owner of only 1.68 acres comprised in 3 survey numbers, whereas suit has been filed for a larger extent of 3.66 acres. Defendant has admitted execution of previous agreement of sale in the year 1992 in favour of the plaintiff and one Subramanian. Earlier, plaintiff filed two suits and both the suits were dismissed. As against the order in application for temporary injunction, C.M.A. No. 11 of 1997 on the file of Sub Court, Kancheepuram was filed by the plaintiff and the same was also dismissed. In O.S. No. 1565 of 1992 plaintiff was examined as P.W.1 and later she did not turn up to the Court for being cross examined and resultantly, the suit was dismissed for default on 19.7.2002 and petition filed by plaintiff to restore the suit was also dismissed. In the above said suit/litigation, plaintiff never mentioned about existence of oral agreement of sale in her favour. It is further averred that there was no occasion or necessity for the power agent of the defendant to go to the Court on the crucial date viz., 22.2.2002, on which date, the oral agreement is said to have been arrived at by the parties. Plaintiff never paid a sum of ` 1,35,000/- as advance. According to the defendant, there is no question of cancellation of sale deed dated 9.3.1994. Denying alleged oral agreement between the defendant and plaintiff on 22.2.2002, defendant prayed for dismissal of the suit.

4. On the above pleadings, trial Court framed two issues as to “whether the alleged oral agreement dated 22.2.2002 is true” and “whether the plaintiff is entitled for the relief of specific performance”. On behalf of the plaintiff, plaintiff examined herself as P.W.1 and one Umapathy was examined as P.W.2. Exhibits A-1 to A-6 were marked. On behalf of the defendant, Power Agent – M.A. Azeez was examined as D.W.1 and Exhibits B-1 to B-11 were marked.

5. Upon consideration of oral and docume