Karnataka High Court
S V Narayana Swamy vs Smt Savithramma on 2 September, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2nd DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
R.F.A.No.1163/2002
c/w
R.F.A.No.1164/2002
R.F.A.No.1163/2002
BETWEEN:
S.V.Narayanaswamy,
Aged about 65 years,
S/o.Late S.Chikka Venkataswamappa,
C/o.S.V.Nagaraj,
No.25/5, Srinivasa Nilaya,
2nd Main Road, C.K.C.Garden,
Bangalore -27. ...Appellant
(By Sri.B.N.Anantha Narayana, Adv.,)
AND:
1. Smt.Savithramma,
Since deceased, rep by LRs.
Respondents 2 to 5.
2. K.V.Bhagavath Prasad,
Since dead rep by LRs.
a. Smt.Shailaja,
Aged about 49 years,
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W/o.Late K.V.Bhagvath Prasad.
b. Kum.Krishnaveni,
Aged about 10 years,
D/o.Late K.V.Bhagvath Prasad,
Minor represented by her guardian,
Mother Smt.Shailaja,
Both residing at No.82, Old No.9,
Datta Hospital Road,
T.G.Tank Road,
Chikkaballapur - 562 101.
3. K.V.Ananda Kumar,
Aged about 34 years,
2 & R3 are sons of
Late A.Venkatanarasimaiah.
R1 to R3 are R/a.No.83,
Venugopal Temple Street,
Chikkaballapur, Kolar District.
4. Smt.Geetha,
Aged about 43 years,
W/o.N.Sriramalu,
R/a.No.S-51, 3rd Stage,
Kirloskar Colony,
Kamala Nagar,
Bangalore.
5. Smt.Swarna,
Aged about 40 years,
W/o.N.Srinivasa,
C/o.V.Narasimhaiah,
Advocate,
Link Road, Malleswaram,
Bangalore -3. ...Respondents
(Cause title amended as per court order dtd.14.3.13
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By Sri.C.N.Kamath & Vinayak Kamath, Advs.,
For R2(a) and R4-5 )
*****
This appeal is filed u/s.96 of CPC., against the
judgment and decree dated 16.8.2002 passed in
O.S.No.1920/89 on the file of the XI Addl. City Civil
Judge, Bangalore, dismissing the suit for permanent
injunction, specific performance and declaration.
R.F.A.No.1164/2002
BETWEEN:
S.V.Narayanaswamy,
Aged about 65 years,
S/o.Late S.Chikka Venkataswamappa,
C/o.S.V.Nagaraj,
No.25/5, Srinivasa Nilaya,
2nd Main Road, C.K.C.Garden,
Bangalore -27. ...Appellant
(By Sri.B.N.Anantha Narayana &
D.G.Chinnappa Gowda, Advs.,)
AND:
1. Smt.Savithramma,
Since deceased, rep by LRs.
a. Smt.Geetha,
W/o.N.Sriramalu,
Major.
R/a.No.S-51, 3rd Stage,
15th Main, Water Tank Road,
Basaveshwaranagara,
Bangalore-79.
b. Smt.Swarna,
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W/o.N.Srinivasa,
Major,
No.4, 2nd Anjaneay Temple Street,
Link Road, Malleswaram,
Bangalore -20.
2. K.V.Bhagavath Prasad,
Since dead rep by LRs.
a. Smt.Shailaja,
Aged about 49 years,
W/o.Late K.V.Bhagvath Prasad.
b. Kum.Krishnaveni,
Aged about 10 years,
D/o.Late K.V.Bhagvath Prasad,
Minor represented by her guardian,
Mother Smt.Shailaja,
Both residing at No.82, Old No.9,
Datta Hospital Road,
T.G.Tank Road,
Chikkaballapur - 562 101.
3. K.V.Ananda Kumar,
Aged about 34 years,
2 & R3 are sons of
Late A.Venkatanarasimaiah.
R1 to R3 are R/a.No.83,
Venugopal Temple Street,
Chikkaballapur, Kolar District. ...Respondents
(Cause title amended as per court order dtd.14.3.13
By Sri.K.V.Narasimhan, Adv., for R1(a) and R3
By Sri.C.N.Kamath & Vinayak Kamath, Advs., for R2(a)
R1(b) Served)
*******
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This appeal is filed u/s.96 of CPC., praying to set-
aside the judgment and decree dated 16.8.2002 passed in
O.S.No.5065/87 on the file of the Court of the XI Addl.
City Civil Judge, Bangalore City, decreeing the suit for
permanent injunction.
These appeals after having been heard and
reserved for judgment on 22.4.2013, coming on for
pronouncement of judgment this day, the Court
delivered the following:-
JUDGMENT
These two appeals are directed against the common judgment and decrees, dated 16.8.2002, passed by the XI Addl. City Civil Judge, Bangalore City, in O.S.No.1920/1989 and O.S.No.5065/1987.
2. By the impugned judgment and decree, the Trial Court has dismissed O.S.No.1920/89 filed by the appellant for specific performance of the sale agreement dated 17.12.1979 and has decreed the suit in O.S.No.5065/87 filed by the respondents for permanent injunction.
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3. Aggrieved by that, the appellant herein who is the plaintiff in O.S.No.1920/89 and the defendant in O.S.No.5065/87 has filed these two appeals.
4. R.F.A.No.1163/2002 has been filed against the judgment and decree passed in O.S.No.1920/89 and R.F.A.No.1164/2002 has been filed against the judgment and decree passed in O.S.No.5065/87.
5. The parties will be referred to with reference to their rank in the appeals.
6. Briefly stated, the facts in O.S.No.1920/89 are as follows:
The appellant herein filed suit in O.S.No.1920/89 for specific performance of the sale agreement dated 17.12.1979. The case of the appellant was that the 1st respondent in RFA No.1163/02 is the wife of -7- A.Venkatanarasimhaiah and respondents 2 to 5 are the children of A.Venkatanarasimhaiah. The site bearing No.106 in Koramangala Extension, Bangalore, measuring East-West 60' and North-South 40' i.e., the suit schedule property was allotted in favour of A.Venkatanarasimhaiah by the City Improvement Trust Board, Bangalore, on lease-cum-sale basis. Late A.Venkatanarasimhaiah was put in possession of the site through possession certificate bearing No.PR No.83/74-75 dated 29.7.74. One of the conditions was that the site shall not be alienated for a period of 10 years. The suit schedule property was the self acquired property of late A.Venkatanarasimhaiah who was the close friend of the appellant. The appellant placed great trust and confidence in A.Venkatanarasimhaiah, who agreed to sell the suit schedule property to the appellant for a consideration of Rs.16,000/- and received a sum of Rs.1,000/--8-
through cheque dated 17.12.1979 drawn on Canara Bank, Chikkaballapur Branch, as advance towards sale consideration. Having received the advance amount, late A.Venkatanarasimhaiah put the appellant in possession of the site on 17.12.1979 and delivered title deeds and other documents relating to the suit schedule property in part performance of the sale agreement dated 17.12.1979. The appellant has been in possession of the suit schedule property. The appellant paid a sum of Rs.385.50 to the City Improvement Trust Board, Bangalore, towards arrears of tax on 16.11.1981. The sale agreement was subject to the terms of lease-cum-sale agreement. A.Venkatanarasimhaiah agreed that the sale deed in relation to the site shall be taken by the appellant for the benefit of the appellant in the name of A.Venkatanarasimhaiah from the CITB, Bangalore. After the expiry of 10 years period from 29.7.1974, -9- A.Venkatanarasimhaiah would obtain necessary permission from the Urban Land Ceiling Authority and execute sale deed in favour of the appellant in respect of the suit schedule property. The appellant shall bear the expenses of stamps and registration charges. A.Venkatanarasimhaiah received the balance sale consideration amount of Rs.15,000/- as follows:
a. A sum of Rs.1,500/- through cheque dated 18.3.80 drawn on Canara Bank, Chikkaballapur, which was encashed on 19.3.1980.
b. A sum of Rs.11,000/- through cheque dated 14.6.81 drawn on Canara Bank, Chikkaballapur, which was encashed on 15.6.81.
c. A sum of Rs.1,000/- was received on 23.1.82 through cheque drawn on Canara
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Bank, Chikkaballapur, which was encashed on 29.1.82.
d. The balance of Rs.1,500/- was received by A.Venkatanarasimhaiah in cash on 3.2.82 in the presence of C.V.Ramanna, B.Venkatarayappa and Y.M.Krishnappa.
7. A.Venkatanarasimhaiah having received the entire sale consideration amount of Rs.16,000/- executed GPA dated 3.2.82 in favour of the appellant in respect of the suit schedule property. The power of attorney was registered on 4.2.1982. The appellant was authorised to apply and obtain licence and sanctioned plan from the BDA for putting up construction on the site as owner of the property.
8. It is stated, the appellant having become the owner of the site and being in possession of the site got prepared a plan for putting up construction on
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the suit schedule property for the residence of himself and his family members. The appellant applied and obtained licence and sanctioned plan under LR No.KML I/270-82-83 dated 15.6.82. The appellant applied for allotment of cement through letter dated 24.11.82. Similarly, the appellant applied for renewal of licence and got the licence and sanctioned plan renewed as per LR No.KML I/213/84-85 dated 20.10.84. The appellant put up construction on the suit schedule property from his own funds. Upon appellant's request, A.Venkatanarasimhaiah applied to BDA for grant of sale deed and thereafter wrote letter to the BDA to issue the sale deed to the appellant. The BDA issued sale deed dated 12.5.85. It is registered on 2.9.85. The appellant took the sale deed in the name of A.Venkatanarasimhaiah by paying for the stamps and registration charges. The appellant obtained the sale deed from the office of the Sub-Registrar. The
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appellant and A.Venkatanarasimhaiah applied to the Ceiling and Regulation Authority on 1.10.85 for necessary permission. Thereafter, A.Venkata- narasimhaiah expired on 7.3.86 at Bangalore.
9. The 2nd respondent who is the eldest son of late A.Venkatanarasimhaiah wrote letter dated 22.4.86 to the Special Dy. Commissioner, Urban Land Ceiling, Kumara Park West, Bangalore, stating that his father expired on 7.3.86 and sought permission to effect the sale of the suit schedule property. The respondents represented that they are awaiting permission from the ULCA for effecting sale of the suit schedule property and assured the appellant that they would execute the sale deed as late A.Venkatanarasimhaiah had received the consideration in full and the appellant was put in possession in part performance. Permission to effect the sale was given by the Special Dy. Commissioner,
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ULCA under endorsement No.ULC (2) SR 607/85-86 dated 25.4.1986. The appellant requested the respondents to execute the sale deed. The respondents promised to execute the sale deed but postponed stating that the 1st respondent was unwell. The appellant informed the respondents that he was ready and willing to obtain the sale deed and requested the respondents to execute the sale deed. The appellant was always and even now ready and willing to obtain the sale deed.
10. The respondents though assured to execute the sale deed, later on caused notice dated 8.10.1987 advancing false and untenable contentions. On receipt of the notice, the appellant met the 2nd respondent and when asked as to why they have issued notice, the 2nd respondent told the appellant that they have issued notice as he was served with the copy of caveat petition u/s 148-A. They have no
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intention whatsoever to avoid executing sale deed in favour of the appellant and they would execute the sale deed within a short time. The respondents postponed execution of the sale deed though the appellant was ready and willing to take the sale deed. Thereafter, the respondents 1 to 3 filed suit in O.S.No.5065/87 suppressing the truth and advancing false and fraudulent claims. The respondents are bound to execute the sale deed. It is stated, the appellant has put up construction in the suit schedule property from his own funds and he is ready and willing to take the sale deed bearing expenses for the stamps and registration charges. The respondents 1 to 3 have falsely contended in O.S.No.5065/87 that they are in possession of the suit schedule property. On false representation they obtained exparte order of injunction. The respondents 1 to 3 are not in possession of the suit schedule property. The
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appellant is in possession of the suit schedule property.
11. It is stated, the appellant has paid the entire sale consideration amount and he has been put in possession in part performance. The respondents being the L.Rs of late A.Venkatanarasimhaiah are bound to execute the sale deed conveying the suit schedule property. Therefore, the plaintiff has prayed for specific performance of the sale agreement dated 17.12.79 and for permanent injunction.
12. The 2nd respondent has filed written statement contending that the suit is not maintainable. A.Venkatanarasimhaiah was allotted Site No.106 in Koramangala extension, Bangalore. It belongs to joint family consisting A.Venkatanarasimhaiah, his wife and sons. In the year 1972, lease-cum-sale agreement was executed.
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Possession of the property was handed over to A.Venkatanarasimhaiah in the year 1974 by the BDA. Thereafter, BDA executed registered sale deed dated 12.8.1985 in favour of A.Venkatanarasimhaiah. A.Venkatanarasimhaiah and the respondents are the owners of the suit schedule property. They are in possession and enjoyment of the suit schedule property. They have paid tax and their names have been entered in the revenue records. A.Venkatanarasimhaiah was a merchant at Chikkabalapur town. In the year 1981 he wanted to construct a residential premises. He obtained sanctioned plan in June 1982 from BDA. After obtaining the licence in June 1982 he had put up construction which contains a room, one bed room, hall etc.,
13. A.Venkatanarasimhaiah died on 7.3.1986 at Bangalore. After the death of
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A.Venkatanarasimhaiah, the 2nd respondent was approached by the appellant as to whether the respondents were desirous of selling the suit schedule property to him. The respondents informed the appellant that it was the only property that they had at Bangalore and as their family members have to come to Bangalore now and then, it was the desire of A.Venkatanarasimhaiah that the family should have residential premises at Bangalore. Accordingly, the respondents intimated the appellant that they are not selling the property and explained that they are in need of the said residential premises. Inspite of that, the appellant continued to pressurise the respondents to sell the suit schedule property. As the appellant started interfering and putting pressure on the respondents, they were forced to file original suit in O.S.No.5065/87 for permanent injunction. On 16.11.87 injunction was granted.
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14. Thereafter, the appellant with malafide intention and to pressurize the respondents has filed the suit without any basis and cause of action. The averments are false and baseless.
15. The averments regarding the sale agreement dated 17.12.79 and possession etc., are denied as baseless and untenable statements. As A.Venkatanarasimhaiah was a merchant at Chikkaballapur town and he was not able to go to several offices for the purpose of obtaining permission for construction, cement, steel and other building materials, power of attorney was given. The claim of the appellant is baseless and untenable. The suit is barred by limitation. Therefore, the 2nd respondent has prayed for dismissal of the suit.
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16. The respondents 1 and 3 to 5 have filed a memo dated 11.11.92 adopting the written statement filed by the 2nd respondent.
FACTS IN O.S.NO.5065/1987
17. The respondents 1 to 3 in R.F.A.No. 1164/2002 and R.F.A.No.1163/2002 have filed suit in O.S.No.5065/87 against the appellant for permanent injunction. They have contended that they are the owners in possession and enjoyment of the suit schedule property. The property bearing No.106 situated in Koramangala Extension, Bangalore, measuring East-West 60' North-South 40' with residential premises was the absolute property belonging to A.Venkatanarasimhaiah for and on behalf of the joint family consisting of A.Venkatanarasimhaiah and respondents 1 to 3. In the year 1972, a lease-cum-sale agreement was executed. Possession of the suit schedule property
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was handed over to A.Venkatanarasimhaiah in the year 1974 by the BDA. The BDA executed registered sale deed dated 12.8.85 in favour of A.Venkatanarasimhaiah. At all time, A.Venkatanarasimhaiah was the owner in possession and enjoyment of the suit schedule property. No other person except A.Venkatanarasimhaiah and respondents 1 to 3 are the owners of the suit schedule property. The respondents 1 to 3 are in possession and enjoyment of the suit schedule property. They have paid the tax. Their names have been entered in the revenue records.
18. It is stated, A.Venkatanarasimhaiah was a merchant at Chikkaballapur town. In the year 1981, he wanted to construct a residential premises and obtained sanctioned plan in June 1982 from the BDA. After obtaining licence in June 1982 A.Venkatanarasimhaiah put up construction which
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consists of one bed room, hall etc. A.Venkatanarasimhaiah died on 7.3.86 at Bangalore.
19. After the death of A.Venkatanarasimhaiah, the appellant approached the 2nd respondent as to whether the respondents are desirous of selling the suit schedule property to the appellant. The respondents informed the appellant that it was the only property that they had at Bangalore. They have to come to Bangalore now and then and it was the desire of A.Venkatanarasimhaiah to have a house at Bangalore. They are not willing to sell the suit schedule property. Inspite of that, the appellant persisted through his friends so that the respondents may sell the suit schedule property in favour of the appellant.
20. It is stated, the 1st respondent is aged 53 years and she has to come to Bangalore for
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treatment. The other family members will be having work at Bangalore and therefore, the premises is needed by them.
21. It is stated, after the death of A.Venkatanarasimhaiah katha of the property has been changed in the name of the 1st respondent. Tax has been paid. The respondents 1 to 3 are in possession and enjoyment of the suit schedule property. The appellant has no right or claim whatsoever in the suit schedule property.
22. It is stated, as A.Venkatanarasimhaiah was not able to go to several offices for the purpose of obtaining permit for construction, to get cement, steel and other building materials, he executed power of attorney in favour of the appellant for the purpose of putting up construction in the suit schedule property. The sanctioned plan was obtained in June 1982. It
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was for a period of two years. The construction was almost over. Therefore, the power of attorney given has come to an end. Further, in view of the death of A. Venkatanarasimhaiah on 7.3.86, the power of attorney stands extinguished. It is stated, in view of unnecessary pressure and influence used by the appellant for the purpose of persuading the respondents to sell the property, a legal notice dated 8.10.87 was issued to the appellant stating that the appellant has no right, title or interest in the suit schedule property and asking the appellant not to interfere with the possession and enjoyment of the suit schedule property by the respondents 1 to 3. The appellant received the notice. He has not replied the notice. One week back, when the 1st respondent was admitted in Bowring Hospital at Bangalore for treatment, the respondents 2 and 3 were also at Bangalore. At that time, when they visited the suit
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schedule property, the appellant also went there and insisted the respondents 1 to 3 as to why they should keep the property at Bangalore idle. When the respondents informed the appellant that they will not sell the property, he became angry and informed the 2nd respondent that he would give trouble to them. The property exclusively belongs to the respondents 1 to 3. The appellant has no right, title or interest in the suit schedule property. The appellant is threatening to interfere and insisting that the respondents 1 to 3 should sell the suit schedule property to him. The respondents apprehend that the appellant may interfere with their possession and enjoyment of the suit schedule property. The appellant is a powerful person and his acts are illegal. If it is not prevented, the respondents 1 to 3 would be put to irreparable loss and injury. Therefore, the respondents 1 to 3
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have prayed for permanent injunction in O.S.No.5065/87.
23. The appellant in R.F.A.No.1164/02 and R.F.A.No.1163/2002 has filed his written statement in O.S.No.5065/87 denying the plaint averments and contending that late A.Venkatanarasimhaiah was allotted site by the BDA. It is his self-acquired property. A.Venkatanarasimhaiah effected sale of the site to the appellant and seized to be in possession and enjoyment of the suit schedule property. The appellant has put up construction and he is in lawful possession and enjoyment of the suit schedule property. The averments that A.Venkatanarasimhaiah wanted to construct a residential premises and he obtained sanctioned plan from the BDA and he has put up construction are denied. It is also denied that after the death of A.Venkatanarasimhaiah, the appellant approached the
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2nd respondent to know as to whether he was desirous of selling the property to the appellant and the respondents 1 to 3 informed the appellant that it is the only property they have at Bangalore and they are not willing to sell the suit schedule property. The other allegations that the respondents 1 to 3 are the owners and they are in possession and that the appellant tried to interfere with their possession are denied.
24. It is contended that late A.Venkatanarasimhaiah was a close friend of the appellant and the appellant had placed trust in late A.Venkatanarasimhaiah. The suit schedule property was the self acquired property of late A.Venkatanarasimhaiah. It was allotted to him by the BDA. Possession certificate dated 29.7.1974 was issued to A.Venkatanarasimhaiah. On 17.12.1979, A.Venkatanarasimhaiah agreed to sell the suit
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schedule property to the appellant for a sale consideration of Rs.16,000/- and a sum of Rs.1,000/- was paid by way of advance through cheque dated 17.12.1979 drawn on Canara Bank. On 17.12.1979 A.Venkatanarasimhaiah handed over all the documents of title relating to site to the appellant and he was put in possession of the site on 17.l2.1979 in part performance. The appellant paid a sum of Rs.385.50 towards arrears of tax on 16.11.81. It was agreed that the sale deed relating to the suit schedule property should be taken by the appellant for the benefit of the appellant in the name of A.Venkatanarasimhaiah from the BDA. A.Venkatanarasimhaiah should execute the sale deed after the expiry of 10 years from 29.7.74. The appellant shall bear the expenses for the stamp and registration charges. It is stated, the balance sale consideration amount of Rs.15,000/- was paid through
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cheques dated 18.3.80, 14.6.81 and 23.1.82 and a sum of Rs.1,500/- was paid in cash on 3.2.82. A.Venkatanarasimhaiah executed GPA dated 3.2.82 and it was registered on 4.2.82. The appellant applied and obtained renewal of licence and sanctioned plan from the BDA on 20.10.84. Thereafter, the appellant put up construction on the site from his own funds.
Upon the request of the appellant, A.Venkatanarasimhaiah applied to BDA for grant of sale deed and wrote letter to BDA that the sale deed be issued and delivered to the appellant. Thereafter, BDA issued sale deed dated 12.5.85 registered on 2.9.85 to the appellant. The appellant obtained sale deed in the name of A.Venkatanarasimhaiah by paying stamps and registration charges. It is stated, the appellant and A.Venkatanarasimhaiah applied to UCRA on 1.10.85 seeking permission. Thereafter,
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A.Venkatanarasimhaiah fell ill and expired on 7.3.86 at Bangalore and he could not execute the sale deed.
25. After the death of A.Venkatanarasimhaiah, the 2nd respondent who is the elder son of A.Venkatanarasimhaiah wrote letter dated 22.4.86 to the Special Dy. Commissioner, ULCA, Bangalore with a copy to the appellant stating that his father expired on 7.3.86 and seeking permission to effect sale deed in respect of the suit schedule property. The respondents 1 to 3 informed the appellant that they were awaiting permission from the ULCA for effecting the sale deed and assured that they would execute the sale deed in favour of the appellant. It is stated, A.Venkatanarasimhaiah had received full consideration and put the appellant in possession of the suit schedule property in part performance. The Special Dy. Commissioner, ULCA issued endorsement dated 25.4.86 permitting to sell the suit schedule property.
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The appellant furnished copy of the endorsement to the 2nd respondent and requested to effect sale deed. The respondents though assured to execute the sale deed, postponed it saying that the 2nd respondent is unwell. The appellant informed the respondents 1 to 3 that he was ready and willing to take the sale deed and requested the respondents to execute the sale deed. The respondents postponed to execute the sale deed on one or the other ground. Later on, the respondents 1 to 3 issued notice dated 8.10.87 advancing false and untenable contentions. On receipt of notice, the appellant met the 2nd respondent and asked as to why they have issued notice. The 2nd respondent told that they have issued notice as they were served with copy of the caveat petition u/s. 148-A and there was no intention to avoid execution of the sale deed and they will execute the sale deed. Thereafter, the respondents postponed execution of
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sale deed even though the appellant was ready and willing to take the sale deed. The respondents 1 to 3 are bound to execute the sale deed. The appellant has put up construction from his own funds and he is ready and willing to take the sale deed. The respondents with fraudulent designs have falsely contended that they are in possession of the suit schedule property knowing fully well that they are making false representation. The respondents 1 to 3 are not in possession of the suit schedule property. The appellant is in possession and enjoyment of the suit schedule property. Therefore, the appellant has prayed for dismissal of the suit.
26. The Trial Court has framed following issues in O.S.No.5065/87 and O.S.No.1920/89.
ISSUES IN O.S.No.5065/1987:
1. Does plaintiff proves his lawful possession on the suit property on the date of suit?
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2. Whether the plaintiff further proves the obstruction and interference by the defendant?
3. Is plaintiff entitled for injunction sought for?
4. What order or decree?
ISSUES IN O.S.No.1920/1989:
1. Whether the plaintiff proves that on 17.12.1979 late A.Venkatanarasimhaiah agreed to sell the suit property and that the defendants as legal representatives are liable to execute the sale deed in favour of the plaintiff?
2. Whether plaintiff proves lawful possession of suit schedule property on the date of suit?
3. Whether defendants prove that suit schedule property belonged to joint family?
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4. Is the plaintiff's suit barred by limitation?
5. Is the suit has no cause of action?
6. Is the court fee paid on plaint insufficient?
7. What order or decree?
27. The Trial Court has answered issue Nos.1 to 3 in O.S.No.5065/87 in the affirmative and consequently, the suit has been decreed granting permanent injunction.
28. In O.S.No.1920/89 the Trial Court has answered issue Nos.1, 2, 4 and 5 in the negative and issue Nos.3 and 6 in the affirmative and consequently, the suit has been dismissed.
29. Aggrieved by that, the appellant has filed these two appeals.
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30. The learned counsel for the appellant contended that the impugned judgment and decrees cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the sale agreement was oral. Consideration has been paid through cheques. DWs.1 to 3 have deposed regarding the oral sale agreement. PW-1 has admitted that his father had received the amount. He also submitted that the GPA is irrevocable and it is coupled with interest. Further he submitted that DW-3 is a witness to the GPA and he has deposed regarding the execution of GPA. He also submitted that Ex.D2 is the letter written by the 2nd respondent seeking permission. The entire sale consideration amount has been paid. Ex.D3 is the copy of notice under section 26 of UL (Ceiling Regulation) Act, 1976. Ex.D4 is the copy of the affidavit in support of the Ex.D3. Exhibits
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D3 and D4 show that A.Venkatanarasimhaiah intended to sell the property. Further he submitted that all the documents are with the appellant. Ex.D9 is the sanctioned plan which is obtained by the appellant. Ex.D10 is the letter by the BDA. Ex.D11 is the cement allotment card. Exhibits D12 to D18 are the tax paid receipts. Exhibits D21, D22, D23, D25 to D27 are the statements of assets and liability of the appellant. Ex.D29 is the sale deed executed by the BDA in favour of A.Venkatanarasimhaiah. The original sale deed is with the appellant. Ex.D30 is the letter of Vinayaka Financiers which shows that A.Venkatanarasimhaiah had borrowed money and has discharged it. Further he submitted that Ex.D32 is the caveat petition. The site number is wrongly mentioned. The appellant has explained it. Further he submitted that Exhibits D33 to D35 are the letters. Exhibits D.33 and D.34 are addressed to the suit
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schedule property. Exhibits D36 to D67 are the vouchers for having purchased the building materials. Exhibits D76 and D77 are the acknowledgments for having received the amount. Ex.D78 is the letter by the BDA. Ex.D79 is the acknowledgement. The documents produced by the appellant show that he has purchased the building materials, obtained sanctioned plan and put up construction. Further he submitted that notice issued by the respondents was in the nature of reply to the caveat petition. There is nothing on record to show that construction was put up by A.Venkatanarasimhaiah or the money was spent by him. The appellant has put up construction at his own cost. The sanctioned plan has been obtained by the appellant. The entire consideration amount of `16,000/- has been paid and possession has been delivered.
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31. Further he submitted that nothing has been pleaded in the written statement regarding payments by the appellant. He also submitted that the Trial Court has not considered exhibits D2, D3 and D4 and the other material on record. Ex.D2 is written by the 2nd respondent and it bears his signature. He also submitted that Ex.P6 is the legal notice. Thereafter, the suit has been filed for injunction. PW-1 has improved his version. There is no foundation in the pleadings. The documents are with the appellant. There is no explanation for that. The evidence and pleadings of the respondents are evasive. The case of the appellant is truthful and the agreement needs to be enforced. There is no specific plea by the respondents regarding `16,000/- paid by the appellant towards consideration amount. The oral agreement is supported by the circumstantial evidence and two witnesses have been examined to
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prove the oral agreement. Therefore, the appeals may be allowed.
32. Placing reliance on the decision of the Hon'ble Supreme Court reported in (2002)8 SCC page 146, the learned counsel for the appellant submitted that mere price escalation during the pendency of the litigation cannot be a reason to deny specific performance. Court can impose reasonable condition for payment of additional amount but it should not be onerous.
33. Placing reliance on the decision reported in AIR 1964 S.C. page 538, the learned counsel for the appellant submitted that evasive and vague denial of facts should be taken as admitted. In the present case, denial of payment of consideration is vague and evasive and therefore, it can be taken as admitted.
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34. Placing reliance on the decision reported in 2007 AIR SCW 2863, the learned counsel for the appellant submitted that there is no specific denial of assertions made in the plaint regarding payment of consideration. Therefore, the averments regarding payment of consideration are deemed to have been admitted. Under order 8 rules 3 and 5 of CPC, the denial must be specific. If the denial is vague and evasive, it can be taken as admitted.
35. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 2009 S.C. page 2463, the learned counsel for the appellant submitted that if the averments in the plaint are not specifically traversed, the same can be taken as admitted.
36. He therefore submitted that the impugned judgment and decrees cannot be sustained in law.
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37. The learned counsel for the respondent No.1(a) and 3 submitted that the impugned judgment and decrees do not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly decreed the suit in O.S.No.5065/87 and dismissed the suit in O.S.No.1920/89 and therefore, the impugned judgment and decrees do not call for interference. He also submitted that the power of attorney is dated 3.2.82. The sale agreement is dated 17.12.79. There is no mention of sale agreement in the power of attorney. Further he submitted that there was no impediment for the appellant to obtain the sale agreement in writing. He also submitted that the payments are made through cheques from March 1980 to February 1982. `1,500/- has been paid by way of cash. No material has been placed on record to show that the payments were made towards sale
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consideration amount. The GPA is not irrevocable. The power of attorney holder was in possession of the property on behalf of the executant. The GPA is not an agency coupled with interest. The GPA was given to the appellant for construction purpose as notice was issued by the BDA to resume the site as per Ex.D85. Ex.D2 letter is created. Exs.D2 and D6 are one and the same. The signature is disputed. Exs.D3 and Ex.D4 are not authenticated documents. There is nothing on record to show that these documents were produced before the concerned authority. Therefore, no reliance can be placed on Exs.D2 to D6. The documents are with the appellant because of the power of attorney. Whatever has been done by the appellant, it is only as power of attorney holder. Further he submitted that Exs.D12 to D18 are in the name of A.Venkatanarasimhaiah. Exs.D21 to D23 are not authenticated documents. Ex.D29 is the sale deed
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dated 12.8.1985. It is in the name of A.Venkatanarasimhaiah. Nobody has been examined to prove Exs.D30, 31, 36 to 58, 59 to 79. In caveat petition Ex.D32 the site number is shown as 103 and not 106. There is nothing to show the existence of sale agreement. Katha has been transferred in the name of the respondents. The injunction suit was filed by the respondents on 16.11.1987. The written statement has been filed by the appellant on 22.11.88. Specific performance suit has been filed by the appellant on 31.3.89. Therefore, it is clear that the suit for specific performance is clearly after thought. The power of attorney is given for specific purpose. The power of attorney holder can act only as an agent. The witnesses DWs 1 to 3 have not deposed regarding the sale agreement. The suit is barred by limitation. The notice Ex.P6 has not been replied. The power of attorney ceases to operate after
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the death of A.Venkatanarasimhaiah. As primary evidence does not exist, secondary evidence cannot be allowed. The impugned judgment and decrees do not call for interference. Therefore, the appeals may be dismissed.
38. The learned counsel for the respondent No.2(a), 4 and 5 orally and by way of written submissions has contended as follows:
There is no agreement dated 17.12.1979 between the appellant and A.Venkatanarasimhaiah.
There is no pleading regarding the alleged oral agreement. The appellant has not demanded specific performance during the life time of A.Venkatanarasimhaiah or subsequently. There is no demand to the legal representatives. The appellant has not replied the legal notice dated 8.10.1987 issued by the respondents. Without demand for specific performance, it cannot be granted. Possession
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of the property continues with the legal representatives of the deceased
A.Venkatanarasimhaiah. The terms of the agreement were not known to the L.Rs as it was kept in secret by the appellant. The GPA is given to the appellant for the purpose of construction of the suit schedule property. The pleading in the plaint shows that the appellant is in possession of the property as per Section 53-A of the Transfer of Property Act in part performance of the sale agreement and the sale agreement was in writing. There is delay and latches on the part of the appellant in filing the suit for specific performance in the year 1989 after the lapse of 10 years. The alleged oral agreement is mentioned only in the year 1997 in the cross examination. There is no mention in the plaint about the caveat petition or the mistake in the caveat petition. The alleged payment is not connected with the sale of the suit
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schedule property. No receipts are produced regarding payment and no explanation is offered. The payment has nothing to do with the alleged oral sale agreement. It is pleaded that the payment was made before three persons. In the evidence it has gone upto 5 persons.
39. Further it is submitted that the GPA was given to the appellant as BDA had issued notice to A.Venkatanarasimhaiah stating that if the construction is not put up within two years, the site would be resumed. This court had extended time to put up construction. Therefore, GPA was given only for the purpose of construction. The GPA is not an agency coupled with interest. There is no concluded contact between the L.Rs and the appellant.
40. Further it is submitted that the compromise petition cannot be considered by this court as it has
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been rejected. The specific performance cannot be granted. The Trial Court has rightly held that the appellant has failed to show that A.Venkatanarasimhaiah had agreed to sell the suit schedule property and the appellant has failed to prove the oral agreement and therefore, the impugned judgment and decrees do not call for interference.
41. Further it is submitted that the respondents are in possession of the suit schedule property and the Trial Court has rightly decreed the suit in O.S.No.5065/87 for permanent injunction and therefore, it does not call for interference.
42. Placing reliance on the decision reported in AIR 2007 S.C. page 1256, the learned counsel for the respondent No.2(a), 4 and 5 submitted that there is no reply to the legal notice issued by the
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respondents and therefore, adverse inference has to be drawn that the suit for specific performance is clearly after thought.
43. Placing reliance on the decision reported in AIR 2007 KAR page 164, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the conduct of the appellant in not replying the notice sent by the respondents and not denying the contents at the earliest assumes importance and it indicates that the suit is afterthought.
44. Placing reliance on the decision reported in AIR 2005 KAR page 292, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the appellant has not produced the legal notice which creates serious doubt about the genuineness of the appellant's case.
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45. Placing reliance on the decision reported in 2009 (1) MLJ page 1067, the learned counsel for the respondent No.2(a), 4 and 5 submitted that adverse inference has to be drawn against the appellant for not replying the legal notice Ex.P6.
46. Placing reliance on the decision reported in AIR 2007 A.P. page 163, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the payments made at different times spreading over nearly three years clearly show that such payments were nothing to do with the alleged oral sale agreement. No receipt has been taken for having paid `1,500/-. The agreement is doubtful and cannot be enforced.
47. Placing reliance on AIR 2008 (NOC) 2644 (AP), the learned counsel for the respondent No.2(a), 4 and 5 submitted that prior demand by way of notice
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is a must, otherwise the suit is not in compliance with Form Nos.47 and 48.
48. Placing reliance on the decisions reported in 1969(2) SCC page 539 and (2005)7 SCC page 60, AIR 2000 SC page 860, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the burden of proving the agreement is on the plaintiff. The plaintiff must prove that the agreement is genuine and he has satisfied the requirement of sec.16 and he is entitled for specific performance. The pleadings must conform to forms 47 and 48 of the 1st schedule in the CPC. The specific performance can be denied if plaintiff fails to aver and prove readiness and willingness.
49. Placing reliance on the decision reported in AIR 1988 NOC 40 (KANT), the learned counsel for the respondent No.2(a), 4 and 5 submitted that notice
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demanding conveyance is not sent and readiness and willingness is not proved and therefore, specific performance cannot be granted.
50. Further placing reliance on the decision reported in 1967(1) Mys.LJ page 71, the learned counsel for the respondent No.2(a), 4 and 5 submitted that if the case is not pleaded, the evidence cannot fill the lacuna. The plaintiff has not pleaded oral agreement and it is not proved.
51. Further placing reliance on the decision reported in AIR 1998 Madras page 169, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the legal notice was issued on 8.10.1987 and it was not replied. Thereafter, the suit has been filed on 31.3.1989 for specific performance which indicates that the suit is frivolous and after thought.
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52. Placing reliance on the decision reported in 1993 (3) Kar.L.J. page 331, the learned counsel for the respondent No.2(a), 4 and 5 submitted that the power of attorney is an authority whereby one is authorised to act for another. The power of attorney is construed strictly. The GPA was given for construction purpose. It is not coupled with interest and it is determined by death.
53. Placing reliance on the decision reported in 1978 (1) Kar.L.J. page 425, the learned counsel for the respondent No.2(a), 4 and 5 submitted that pleadings and proof in specific performance suit should be in conformity with the provisions of sec.16(c) and forms 47 and 48 of the First Schedule in the CPC. Otherwise, the plaintiff is not entitled for specific performance.
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54. He therefore submitted that the appeals may be dismissed.
55. In reply, the learned counsel for the appellant submitted as follows:
It is the case of the appellant that the sale agreement was oral and all ingredients of oral agreement have been pleaded. If there was any ambiguity, the respondent should have sought for clarification. The payment and execution of power of attorney are not disputed. The documents have been delivered to the appellant. The demand need not be in writing. The pleadings conform to Form-47 and 48.
The oral agreement is pleaded. The amount is paid through cheques and it is admitted. Possession has been delivered. The documents have been handed over. The power of attorney is irrevocable. The appellant has obtained plan and licence from the BDA.
Construction has been put up by the appellant and the
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entire amount has been spent by the appellant. The written statement is very vague. There is no specific denial regarding consideration paid as required under Order 8 Rules 3 and 5 of CPC. The denial is evasive.
56. Further he submitted that the issue regarding limitation has been concluded holding that the suit is within time. In the written statement it is pleaded that the appellant was demanding to execute the sale deed. There is no specific plea regarding payments made and delivery of documents. It is not pleaded that the payment was made for some other purpose. The entire sale consideration amount has been paid. There is nothing to be performed by the appellant except taking the sale deed. The legal notice demanding specific performance in writing is not the requirement of law. The mistake in the caveat petition Ex.D32 has been explained. In response to Ex.D32, legal notice has been issued by the
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respondents as per Ex.P6. Immediately, the suit has been filed for permanent injunction by the respondents. The appellant has spent huge amount for construction. The appellant was always ready and willing to perform his part of the contract. Therefore, the appeals may be allowed.
57. I have carefully considered the submissions made by the learned counsel for the parties.
58. The points that arise for my considerations are:
1. Whether the appellant has proved the oral sale agreement dated 17.12.1979?
2. Whether the appellant is entitled for specific performance of the sale agreement dated 17.12.1979?
3. Whether the Trial Court was justified in granting permanent injunction in O.S.No.5065/87?
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4. Whether the impugned judgment and decrees passed in O.S.No.1920/89 and O.S.No.5065/87 call for interference?
59. Point No.1: The case of the appellant is that there was an oral agreement of sale dated 17.12.79 in respect of the suit schedule property between the appellant and deceased A.Venkatanarasimhaiah, the husband of the 1st respondent and father of the other respondents. Deceased A.Venkatanarasimhaiah had agreed to sell the suit schedule property in favour of the appellant for a sale consideration of `16,000/- and a sum of `1,000/- was paid on 17.12.1979 through cheque as advance. On 17.12.1979, possession was delivered and documents in respect of the suit schedule property were handed over to the appellant. The consideration amount of `16,000/- was paid through cheques dated 18.3.1980, 14.6.1981 and 23.1.1982
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and a sum of `1,500/- was paid in cash on 3.2.1982 in presence of the witnesses. Thereafter, the deceased A.Venkatanarasimhaiah executed GPA in favour of the appellant as per Ex.D1. Thereafter, the appellant obtained sanctioned plan and licence and put up the construction at his own cost. The original sale deed was handed over to the appellant by the BDA.
60. The respondents have denied that there was any sale agreement between the appellant and the deceased A.Venkatanarasimhaiah on 17.12.1979. The deceased A.Venkatanarasimhaiah has not received any sale consideration amount from the appellant. The suit schedule property was allotted in favour of A.Venkatanarasimhaiah. He has put up the construction. The GPA has been executed in favour of the appellant for taking some assistance from the appellant for putting up construction. The appellant
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has not derived any right, title or interest in the suit schedule property by virtue of the GPA.
61. The respondents have examined PW-1 and exhibits P1 to P18 have been marked.
62. The appellant has examined himself as DW-1 and two witnesses DWs.2 and 3 and exhibits D1 to D87 have been marked.
63. The appellant i.e., DW.1 has deposed that there was sale agreement between himself and the deceased A.Venkatanarasimhaiah on 17.12.1979. The consideration amount of `16,000/- has been paid through cheques and by way of cash. On 17.12.1979 itself A.Venkatanarasimhaiah delivered possession of the suit schedule property and handed over the documents. Subsequently, the deceased A.Venkatanarasimhaiah executed GPA in favour of the appellant as per Ex.D1. The appellant
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has put up construction at his own cost and he is in possession and enjoyment of the suit schedule property. The appellant demanded the respondents to execute the sale deed. The respondents declined to execute the sale deed.
64. DW.2 has deposed that the suit site was allotted to Venkatanarasimhaiah by the CITB on lease cum sale agreement. Venkatanarasimhaiah told him that he was intending to sell the suit site as he was in need of money. DW.2 told the appellant about the same. The appellant agreed to purchase the site. In December 1979, in presence of the appellant, DW.2 C.V.Ramanna, B.V.Venkatanarayanappa and Venkatanarasimhaiah it was decided that Venkatanarasimhaiah would sell the site to the appellant for `16,000/-. On the same day the appellant paid `1,000/- as advance to Venkatanarasimhaiah and he told the appellant to
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take possession and raise foundation in the suit site. Venkatanarasimhaiah handed over the documents relating to the site to the appellant.
65. In 1982 Venkatanarasimhaiah told DW.2 that he received the sale consideration amount except `1,500/-. He would execute the sale deed after receiving `1,500/- and after the expiry of non- alienation period. Venkatanarasimhaiah received balance consideration of `1,500/- from the appellant and executed GPA. The appellant is in possession of the suit property and constructed the building on the suit site at his own cost. After the death of Venkatanarasimhaiah a panchayat was held in the house of one Mr.Prakash at Ulsoor and the 2nd respondent refused to execute the sale deed.
66. DW.3 has deposed that there was an agreement between Venkatanarasimhaiah and the
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appellant in respect of the suit site. The appellant agreed to purchase the same for `16,000/- in 1979. On that day, the appellant paid `1,000/- to Venkatanarasimhaiah as advance. As there was non- alienation clause, Venkatanarasimhaiah executed GPA in favour of the appellant. It has been registered. Ex.D1 is the GPA. Ex.D1(a) (b) and (c) are the signatures of Venkatanarasimhaiah. At the time of executing Ex.D1 Venkatanarasimhaiah agreed that he had received full sale consideration amount. His signature in Ex.D1 is at Ex.D1(d). The suit site is in possession of the appellant. The appellant has constructed the building. After the death of Venkatanarasimhaiah, the second respondent refused to sign the application to be filed before the Deputy Commissioner, ULC. A panchayat was held in the house of Prakash. The second respondent refused to execute the sale-deed.
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67. PW.1, in his examination-in-chief, has reiterated the plaint averments in O.S.No.5065/87 and the defence taken in O.S.No.1920/1989. He has stated that the suit schedule property has been allotted to his father by the BDA. The lease cum sale agreement has been executed. After 10 years, the sale deed has been registered in favour of his father. After the death of his father, khatha has been transferred in the name of his mother. They have been paying tax. His father got plan sanctioned for construction of house in the suit schedule property. Ex.P1 is the khatha certificate. Ex.P2 is assessment register extract. Ex.P3 is death certificate of his father. Ex.P4 is certified copy of lease cum sale agreement. Ex.P5 is certified copy of the sale deed. They have constructed the building in the suit property. Notice was issued to the appellant as per Ex.P6. They have been paying the tax. Exhibits P7 to
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P13 are tax paid receipts. The suit property is in their possession.
68. The appellant was acquainted with his father. A power of attorney was given to the appellant by his father for the purpose of assistance to his father in the construction. The legal notice has not been replied by the appellant. The appellant has been putting pressure on him for the sale of the suit schedule property. His father never agreed to sell the suit schedule property. They have also not agreed to sell the suit schedule property. The appellant started threatening them that he would take forcible possession, if they did not execute the sale deed in his favour. The appellant has no right whatsoever. As his father has expired, the appellant is bringing pressure on them demanding execution of the sale deed in his favour.
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69. The native place of appellant is Chikkaballapura. He was taking financial assistance from his father. He is aware of the dealings of his father. His father was not entering into any transaction without discussing with him. The building in the suit schedule property was constructed at their cost. No sale agreement was entered into between the appellant and his father.
70. In his cross-examination, at para 10, PW-1 has stated as follows:
"I do not know whether the defendant i.e., the appellant had any friendship with my father but, he was acquainted with my father. The original possession certificate, lease cum sale agreement and other documents pertaining to the suit property were given to the defendant i.e., the appellant as he was the GPA holder. It is true that the GPA shown to me now was executed by my father in favour of the
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defendant i.e., the appellant. It is marked as exhibit D1."
71. Further at para 11, PW.1 has deposed as follows:
"It is true that my father received `1,000/- by cheque from the defendant i.e., the appellant on 17.12.1979. It is true that my father had also received `1,500/- on 18.3.1980, `11,000/- on 15.6.1981, and `1,000/- on 29.1.1982 by means of cheque from the defendant i.e., the appellant drawn upon Canara Bank, Chikkaballapur. I do not know whether it is true that 17.12.1979 itself when my father received a cheque for `1,000/- from the defendant i.e., the appellant and he had handed over the title documents of the suit property to the defendant i.e., the appellant. It is true that the defendant i.e., the appellant had paid arrears of tax and the subsequent tax after 17.12.1979 to the BDA. But, I say that my father has
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paid the money to the defendant i.e., the appellant for payment of tax."
72. Further at para 12, PW.1 has deposed as follows;
"It is true that as stated in the Ex.D1 the defendant i.e., the appellant had applied for and obtained the license and sanctioned plan from the BDA for construction."
73. At para 13, PW1 deposed as follows;
"The construction is about 1600 sq.ft. Finishing work is yet to be done."
74. At para 14, it is stated as follows;
"It is true that my father had given authority to the defendant i.e., the appellant to obtain the sale deed by the BDA."
75. At para 15, PW.1 has deposed as follows;
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"I say that Ex.D2(a) is not my signature because in this Ex.D2 the
defendant i.e., the appellant is shown to be my uncle, but, actually he is not my uncle."
76. At para 18, PW.1 has stated as follows;
"I do not exactly know how much money was spent for construction of house by my father as he himself was attending it. He has not maintained accounts."
77. At para 20, PW.1 has deposed as follows;
"I do not know whether my father had filed such application seeking permission to effect the sale of the property. I do not remember whether the document shown to me now is the endorsement received by me from the Spl.D.C. ULC Bangalore."
78. At para 23, it is stated as follows;
"There are no records to show that the defendant i.e., the appellant was
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taking financial assistance from my father now and then."
79. In his cross-examination on 9.10.2001, PW.1 has stated as follows;
"It is true all payment made by Narayana Swamy to our father was through cheques. It is not true to suggest that at the time of GPA, Narayana Swamy gave `1,500/- to my father by cash. No transaction was between Narayanaswamy and my father. To my knowledge except the transaction in respect of cheques, there was no other transaction between Narayanaswamy and my father."
80. In his cross examination, DW-1 has stated as follows:
"There was no agreement between me and Sri.Venkatanarasimhaiah in writing. Even after receiving Ex.P6 notice I did not reply stating that there was an oral agreement between me and Sri.Venkatanarasimhaiah.
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It is not true to suggest that I had borrowed loan from Sri.Venkatanarasimhaiah. It is not true to suggest that I had borrowed loan from Sri.Venkatanarasimhaiah and repaid it. I was never residing at No.103, 2nd main, Koramangala. Site No.103, 2nd main, Koramangala, 1st block does not belong to me at all. I say that there is a mistake in number in Ex.D32."
81. At para 21, it is stated as follows;
"The lease period was for 10 years from 29.7.1974. As Sri.Venkatanarasimhaiah had assured me that he would execute a sale deed and get it registered soon after the expiry of lease period, I did not get any agreement in writing from him. It was oral."
82. The appellant claims that the deceased A.Venkatanarasimhaiah had entered into oral sale agreement dated 17.12.79. The entire sale consideration amount has been paid. The
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respondents have denied the sale agreement and also the payment of sale consideration amount in the written statement. It is contended that the payments are spread over nearly three years which clearly show that the payments have nothing to do with the alleged oral sale agreement. Serious doubt arises whether the agreement is true and genuine. The burden is on the plaintiff to prove the oral sale agreement. Reliance was placed on the decisions reported in AIR 2007 AP page 163, 1969(2) SCC page 539, (2005) 7 SCC page 60, 1967(1) Mys.L.J. page 71, 1978(1) Kar.L.J. page 425.
83. In P.PRABHAKARA RAO vs. P.KRISHNA reported in AIR 2007 AP page 163, the Andhrapradesh High Court held, payment of consideration spread over four years was not acceptable. In case of oral sale agreement the burden is on the plaintiff to prove that there was consensus
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ad idem between the parties for a concluded oral agreement of sale. The plaintiff did not take any steps on his own accord, in the matter of seeking specific performance of the alleged oral agreement. He swung into action only after he received notice demanding vacant possession. No oral evidence was adduced to speak to the factum of conditions of oral agreement. The plaintiff has failed to prove the existence of consensus ad idem and the oral agreement.
84. In OUSEPH VARGHESE vs. JOSEPH ALEY & Others reported in 1969(2) SCC page 539, the Hon'ble Supreme Court has held that the burden of proving the agreement is on the plaintiff. The plaintiff must plead and prove his readiness and willingness. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st schedule in the CPC.
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85. In GURUPADAYYA vs. SHIVAPPA reported in 1978(1) Kar.LJ page 425, this Court has held, the pleadings and proof in specific performance suit should be in conformity with section 16(c) and Form No.47 and 48 of the 1st schedule to CPC.
86. In RAJESHWARI vs. PURAM INDORIA reported in (2005) 7 SCC page 60, the Hon'ble Supreme Court has held, in a suit for specific performance whether the plaintiff was ready and willing in terms of section 16 of Specific Relief Act, whether it is a case for exercise of discretion in terms of section 20 of Specific Relief Act, whether there was latches on the part of plaintiff in approaching Court are normally the questions which fall for consideration. In some cases question of limitation may also arise. The finding on primary aspects would
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depend upon pleadings and evidence in the light of surrounding circumstances.
87. In RUDRAWWA vs. BALAWWA & Another reported in 1967 (1) Mys.LJ page 71, this Court has held, if the case is not pleaded any amount of evidence cannot fill the lacuna.
88. In GURUPADAYYA vs. SHIVAPPA reported in 1978 (1) Kar.L.J. page 425, this Court has held, the pleadings and proof should be in conformity with the provisions of sec.16(c), and form No.47 and 48 of 1st schedule in the CPC.
89. In the present case, the appellant has pleaded oral sale agreement. He has contended that there was oral sale agreement dated 17.12.1979 between him and A. Venkatanarasimhaiah agreeing to sell the suit schedule property. The sale consideration amount agreed was `16,000/-. The appellant paid
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`1,000/- through cheque on 17.12.1979 as advance. A.Venkatanarasimhaiah handed over documents and possession of the suit schedule property on 17.12.1979. The appellant paid a sum of `1,500/- on 18.3.80, a sum of `11,000/- on 14.6.81 and a sum of `1,000/- on 23.1.82 through cheques drawn on Canara Bank, Chikkaballapura. A sum of `1,500/- was paid in cash on 3.2.82 in presence of the witnesses. A.Venkatanarasimhaiah executed registered GPA on 4.2.1982. The appellant was authorised to obtain license and put up construction. The appellant has obtained license and sanctioned plan and put up construction by spending considerable amount. The appellant has collected the sale deed from the BDA. The appellant requested the respondents to execute the sale deed. The respondents postponed the execution of the sale deed. The appellant was always and even now ready to take the sale deed from the
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respondents bearing the expenses of stamp and registration charges.
90. PW.1 in his evidence has admitted that his father had received `1,000/- through cheque from the appellant on 17.12.1979. His father had received `1,500/- on 18.3.1990, `11,000/- on 15.6.1981 and `1,000/- on 29.1.1982 through cheque drawn on Canara Bank, Chikkaballapur.
91. The respondents have denied payment of sale consideration amount in the written statement. But, PW.1 has admitted in his cross-examination that the amount was paid to his father through cheques. Nowhere, in the written statement it is pleaded that the amount was paid for any other purpose or the appellant was taking financial assistance from Venkatanarasimhaiah. It is suggested to the DW.1 i.e., appellant that he had borrowed loan from
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Venkatanarasimhaiah and repaid it. The appellant has denied the suggestion. PW.1 has deposed that the appellant was taking financial assistance from his father. In his cross-examination, PW.1 has stated that there are no records to show that the appellant was taking financial assistance from his father. There is no specific plea in the written statement that the appellant was taking financial assistance from Venkatanarasimhaiah or borrowed money from him. In the absence of specific plea, the respondents cannot contend that the appellant was taking financial assistance from Venkatanarasimhaiah and the amount was paid towards discharge of loan. Hon'ble Supreme Court in BADAT & Co., vs. EAST INDIA TRADING Co., reported in AIR 1964 SC page 538 has held that evasive and vague denial of facts may be taken as admitted. In M.VENKATARAMANA HEBBAR (D) by LRs vs. M.RAJAGOPAL HEBBAR & Others
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reported in 2007 AIR SCW page 2863, the Hon'ble Supreme Court has held, the denial must be specific. If denial is not specific, the Court can draw an inference that it is admitted. In SETH RAMDAYAL JAT vs. LAXMI PRASAD reported in AIR 2009 SC page 2463, the Hon'ble Supreme Court has held, if the averments are not specifically traversed, it is deemed to be admitted. In the present case, there is no specific plea that the appellant was taking financial assistance from Venkatanarasimhaiah or the amount was paid towards discharge of loan. The denial of payment of sale consideration amount is vague and evasive. In the absence of specific plea, the respondents cannot contend that the appellant was taking financial assistance from Venkatanarasimhaiah or the amount was paid towards discharge of loan or for any other purpose. The evidence of DW.1, DW.2 and DW.3 and the admission of PW.1 clearly show
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that the amount was paid by the appellant to Venkatanarasimhaiah towards sale consideration amount. The appellant has paid the entire sale consideration amount of `16,000/-.
92. There is no merit in the contention that the appellant has not pleaded oral sale agreement. The appellant has pleaded all the ingredients of the oral sale agreement i.e., the date of sale agreement, the property agreed to be sold, the consideration, the amount paid, the mode of payment, delivery of possession, putting up of construction, demand to execute the sale deed, readiness and willingness to perform his part of the contract.
Therefore, there is no merit in the contention that oral sale agreement is not pleaded. The pleadings conform to form No.47 and 48 of 1st schedule to CPC and Section 16 of the Specific Relief Act.
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93. The respondents contend that they are in possession and enjoyment of the suit schedule property. They have produced Ex.P1 khatha certificate, Ex.P2 assessment register extract, Ex.P3 death certificate of Venkatanarasimhaiah, Ex.P4 certified copy of the lease cum sale agreement, Ex.P5 certified copy of the sale deed, Ex.P6 copy of legal notice, exhibits P7 to P13, P15 and P16 tax paid receipts, Ex.P14 copy of the order in disciplinary proceedings against the appellant and others. Ex.P17 is the certified copy of the order passed on issue No.4. Ex.P18 is the certified copy of the decree in O.S.No.1920/1989.
94. The appellant contends that he was put in possession of the suit schedule property pursuant to the sale agreement dated 17.12.79 and the documents were handed over to him. The appellant has produced possession certificate and the
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documents which were handed over to him. PW.1 has deposed that the original possession certificate, lease cum sale agreement and other documents pertaining to the suit schedule property were given to the appellant as he was a GPA holder. DW.1 and DW.2 have deposed that the documents were handed over to the appellant on the date of sale agreement i.e., on 17.12.1979. There is no mention in the power of attorney Ex.D1 that the documents were handed over to the appellant at the time of executing Ex.D1 power of attorney. Therefore, it is clear, the documents were handed over pursuant to the sale agreement dated 17.12.1979.
95. Thereafter, the appellant has obtained sanctioned plan as per Ex.D.9. The documents produced by the appellant i.e., exhibits D.36 to D.67 clearly show that the appellant has purchased construction material and spent considerable amount
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to put up construction. Exhibits D.36 to D.67 are receipts and cash bills for having purchased cement, steel, boulders, stones, sand, jelly, bricks, tiles, borewell and labour charges. The respondents have pleaded that the construction was put up by late Venkatanarasimhaiah. PW.1 has deposed that they have put up construction in the suit property at their cost. The respondents have not produced anything to show that the respondents or late Venkatanarasimhaiah had put up construction or spent money to put up construction or participated in the construction work. Therefore, it is clear, the construction was put up by the appellant and he has spent money. The claim of the respondents that they have put up construction is baseless and cannot be accepted. The documents produced by the appellant and the oral evidence on record clearly show that the appellant was put in possession of the property by
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virtue of the oral sale agreement dated 17.12.79 and he has put up construction by spending considerable amount. The contention that the respondents are in possession of the suit schedule property cannot be accepted.
96. It is contended that Ex.D1 GPA dated 3.2.1982 was executed by A.Venkatanarasimhaiah in favour of the appellant only for the purpose of putting up construction. The appellant has acted only as an agent. The GPA is not coupled with interest. It is determined by death. Reliance was placed on the decision reported in 1993(3) Kar.LJ page 331.
97. In MOHAMMED alias PODIYA BEARY vs. AC, PUTTUR, & Others reported in 1993(3) Kar.LJ page 331, this Court has held, a power of attorney is an authority whereby one is authorised to act for another. Where all the rights and liabilities under a
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contract were made over by a power of attorney, such power is an agency coupled with interest. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal. Power of attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers.
98. In the present case, the terms of the GPA read as follows:
"1) To put up construction on the vacant site bearing No.106 measuring 40' x 60' size 1st stage Koramangala layout, Bangalore.
2) To apply to the Bangalore Development Authority and/or to the Corporation of City of Bangalore for getting a plan for the said construction and to get a license thereof.
3) To pay the taxes to the Bangalore Development Authority and or to the Corporation of
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the City of Bangalore and to appear before the said authority and sign necessary applications and paper in connection with the said purpose.
4) To apply for necessary permits to get cement, steel and other allied building materials for the said construction and sign all the necessary papers in this connection and to receive the same for and on my behalf.
5) To appear before any public office or offices for obtaining necessary permission for construction of the building and also to obtain sanction of the plan from the Bangalore Development Authority or the Corporation Offices, Bangalore.
6) To enter into an agreement or agreements to lease out the said premises and to realise the rent from the tenants and pass valid receipts thereof.
7) To appear before the Electricity Board, Sewerage and Water Board and other offices and
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make necessary application for the purpose of obtaining permission for getting the said connections to the premises.
8) To manage, supervise and direct the said construction work in the aforesaid premises.
9) To pay after construction, House tax, light and water charges and other charges of the premises.
10) To attend to any repairs or alterations to the said construction.
11) To commence, carry or defend all actions and other proceedings concerning the said immovable property.
12) To sign and verify the plaints return statements affidavits petitions, objections and applications of any kind and to file them in any such court in respect of the said immovable property.
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13) To file and receive back, documents in deposits in any public office or court in respect of the said property.
14) To appoint advocates to appear for in any court of public offices in respect of the said immovable property and to make such appointments as may said attorney deems fit and necessary in connection with the said purpose.
15) I shall not revoke this (G.P.A) General Power of Attorney till such time my attorney voluntarily seeks for such revocation.
16) All these acts, deeds and things such refer to the above said immovable property only and hereby declare that all acts deeds and things lawfully done by my said Attorney shall be construed as acts and deeds and things done by me and I hereby agree to ratify and confirm all whatever that my said attorney shall
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lawfully do or cause to be done for me by virtue of the powers hereby given.
17) Site No.106, measuring 40' feet x 60' feet, Koramangala Extension, as detailed in the schedule below has been allotted by the Bangalore Development Authority vide Possession Certificate No.PR.83/74-75, dated 29.7.1974.
Schedule All that piece and parcel of Site No.106, East to West 60 feet, North to South 40 feet, bounded : North by Site No.107, South by Site No.105, East by Road, West by Site No.129.
18) As I am residing at Chikkaballapur and as I am not in a position to look after the site and its construction I have given Power of Authority to Sri.S.V.Narayanaswamy, son of Settihalli Chikkavenkatashamappa."
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99. It is clear from the terms of GPA, the appellant has been authorised to put up construction, to obtain license, to pay tax, to apply for necessary permits, to get cement, steel etc., to enter into an agreement or agreements to lease out, to realise rent, to manage, supervise and direct construction, to pay after construction house tax, light and water charges, to attend repairs or alteration, and to defend all actions. Clause No.15 of the GPA provides that the executant i.e., Venkatanarasimhaiah shall not revoke the GPA until such time that his attorney voluntarily seeks for such revocation. It is clear, the GPA cannot be revoked until such time the appellant seeks for its revocation. Therefore, it cannot be said that the GPA was given only for the purpose of putting up construction. The GPA authorises the appellant to enter into agreement, to lease out the property, to attend to repairs and alteration, to pay tax and other
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charges after construction. The GPA cannot be revoked until such time the appellant voluntarily seeks for its revocation. Therefore, the contention of the respondents that the GPA was given only for the purpose of construction cannot be accepted and accordingly, it is rejected.
100. The appellant is not claiming possession based on the GPA. The appellant claims possession based on the oral sale agreement dated 17.12.1979. According to the appellant, he was put in possession on 17.12.1979 and documents were handed over. The appellant has produced the documents handed over to him. DWs.1 to 3 have deposed regarding the oral sale agreement. The evidence of DWs.1 to 3 coupled with admission of PW-1 clearly show that there was oral sale agreement dated 17.12.1979 between the appellant and Venkatanarasimhaiah and the entire sale consideration amount of `16,000/- has
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been paid. The respondents contend that they are in possession of the suit schedule property. But, the documents produced by the appellant clearly show that he is in possession of the suit schedule property and he has put up construction by spending considerable amount.
101. Ex.D2 is the copy of the letter dated 22.4.1986 written by the 2nd respondent to the Spl.D.C., Urban Ceiling Bangalore requesting to permit to sell the site. Ex.D2(a) is the signature of the 2nd respondent. Ex.D3 is the xerox of the notice under section 26 of the Urban Ceiling Regulation Act, 1976. Ex.D4 is the copy of the affidavit of A.Venkatanarasimhaiah in support of Ex.D3. Ex.D5 is the endorsement. PW-1, in his evidence has denied his signature in Ex.D2. DW-1 has deposed that Ex.D2 was handed over to him by the 2nd respondent and he has identified the signature of the 2nd respondent in
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Ex.D2 as Ex.D2(a). Ex.D3 and Ex.D4 are not authenticated documents. Ex.D5 is the endorsement dated 25.4.1986 stating that notice issued under ULC(2) SR.607/85-86 dated 27.2.1986 is cancelled. Ex.D2 is the copy of the letter sent to the Urban Ceiling Authority. It bears the signature of the 2nd respondent. The 2nd respondent i.e., PW.1 has denied his signature in Ex.D2 evasively stating that Ex.D2(a) is not his signature because in Ex.D2 the appellant is shown as his uncle, but, actually the appellant is not his uncle. He has stated, he does not know whether his father had filed application seeking permission to sell the property. He does not remember whether the document shown to him is the endorsement received by him from the Spl.D.C. ULC, Bangalore. Ex.D2 shows that request was made to the ULC, Authority, Bangalore to sell the property.
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102. Exhibits D21, D22, D23, D25, D26 and D27 are copies of the statements of assets and liabilities for the years 1983, 1984, 1985, 1988 and 1989 submitted by the appellant to the concerned authority. In the said statements, the appellant has shown that the suit schedule property belongs to him. However, exhibits D21, D22, D23, D25, D26 and D27 are not authenticated documents. Therefore, they cannot be relied upon.
103. Exhibits D33, D34 and D35 are the letters addressed to the appellant. In exhibits D33 and D34 the address shown is No.106, Koramangala, Bangalore, i.e., the suit schedule property.
104. Ex.D9 is the sanctioned plan obtained by the appellant. Ex.D11 is the cement allotment card. It is in the name of the appellant. Ex.D19 is cash memo for having purchased cement. Exhibits D36 to
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D67 are the receipts and cash bills. They show that the appellant has purchased the building material like cement, steel, boulders, stones, sand, jelly, bricks, tiles and dug borewell and paid labour charges.
105. From the evidence on record, it is clear, that there was an oral sale agreement between the appellant and A.Venkatanarasimhaiah on 17.12.1979. Thereafter, Ex.D1 GPA has been executed on 3.2.1982. The appellant has put up construction after obtaining sanctioned plan. The amount is spent by the appellant. The sale consideration amount except `1,500/- has been paid through cheque. A sum of `1,500/- has been paid in cash. Thus, the entire sale consideration amount has been paid. The appellant has proved oral sale agreement dated 17.12.1979. Point No.1 answered accordingly holding that the appellant has proved oral sale agreement dated 17.12.1979.
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106. Point No.2: The learned counsel for the appellant contended that the entire sale consideration amount has been paid, possession has been delivered and the documents relating to the suit schedule property have been handed over to the appellant. The appellant is in possession of the suit schedule property. Therefore, the appellant is entitled for specific performance. The respondents contend that there was no sale agreement and therefore, specific performance cannot be enforced.
107. While answering point No.1, it has been held that there was oral sale agreement dated 17.12.79 between the appellant and Venkatanarasimhaiah. The appellant has paid the entire sale consideration amount. The appellant has been put in possession of the suit schedule property. The appellant has put up construction by spending
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considerable amount. The documents produced by the appellant i.e., exhibits D.36 to D.67 cash bills and receipts show that the appellant has put up construction by spending considerable amount. The appellant has purchased construction material like cement, steel, boulders, stones, sand, jelly, bricks, tiles etc., and dug borewell and paid labour charges. The respondents have not produced anything to show that they have put up construction or spent money for construction though they have contended that they have put up construction. There is no merit in the contention that the appellant has put up construction as GPA holder on behalf of Venkatanarasimhaiah. The GPA is not revocable until such time the appellant voluntarily seeks for revocation. The evidence of DWs.1 to 3 show that possession was delivered and documents were handed over to the appellant on 17.12.1979. The construction has come up upto the
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lintel level. At that stage, the respondents have approached the Court in O.S.No.5065/1987 and obtained injunction.
108. It was contended that there was no demand to execute the sale deed and legal notice Ex.P6 has not been replied and therefore, specific performance cannot be enforced. Reliance was placed on the decisions reported in AIR 2008 (NOC) 2644 (AP), AIR 1988 NOC 40 (KANT).
109. In BADDAM PRATAPA REDDY vs. CHENNADI JALAPATHI REDDY & Another reported in AIR 2008 (NOC) 2644 (AP), it has been held, if a suit is filed for specific performance without making prior demand by way of notice the suit is not in compliance with form Nos.47 and 48.
110. In P.SARAVANAM & Others vs. V.L.TYAGARAJ reported in AIR 1980 NOC 40
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(KANT), this Court has held, no notice demanding conveyance was sent, but only protest lodged with the vendors, the conduct of the plaintiff does not constitute any expression of readiness and willingness, the suit for specific performance is liable to be dismissed.
111. In O.S.No.5065/1987 the respondents have pleaded that after the death of Venkatanarasimhaiah, the appellant approached the second respondent and asked whether the respondents are desirous of selling the suit schedule property to the appellant. The respondents informed the appellant that they are not willing to sell the suit schedule property. The appellant persuaded through his friends so that the respondents may sell the suit schedule property in favour of the appellant. In view of unnecessary pressure and influence used by the appellant to persuade the respondents to sell the property, a legal
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notice dated 8.10.1987 was issued asking the appellant not to interfere with their possession. The appellant has not replied the notice.
112. In the written statement filed in O.S.No.1920/1989, the respondents have contended that after the death of A.Venkatanarasimhaiah, the appellant approached the 2nd respondent as to whether the respondents were desirous of selling the suit schedule property to the appellant. The respondents informed the appellant that they are not selling the suit schedule property and they are in need of a residential premises at Bangalore. In spite of that, the appellant continued to pressurize the respondents to sell the suit schedule property.
113. PW.1 i.e., the second respondent has deposed in his evidence that the appellant was putting pressure on them to sell the suit schedule property.
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His father or themselves have not agreed to sell the suit schedule property. The defendant started threatening them that he would take forcible possession, if they did not execute the sale deed in his favour.
114. It is clear from the averments in the written statement and the evidence of PW.1 that the appellant was demanding the respondents to execute the sale deed. During the life time of A.Venkatanarasimhaiah, he has not denied to execute the sale deed. He has agreed to sell the suit schedule property and has received the entire sale consideration amount. He has executed GPA exhibit D1. He has written letter to the BDA as per Ex.D81 requesting to execute the sale deed. Copy is sent to the appellant to collect the sale deed. The appellant has collected the sale deed. Ex.D82 is the letter from the BDA asking Venkatanarasimhaiah to produce the
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encumbrance certificate and to pay full lease amount. Ex.D83 is the letter dated 20.10.1984 requesting for renewal of lease. Ex.D.84 is the letter dated 15.6.1982 informing A.Venkatanarasimhaiah that sanction has been accorded for the plan submitted. Ex.D.85 is the show cause notice as to why the site shall not be resumed after cancelling the allotment as construction has not been put on the site. Ex.D.86 is the letter written by the appellant on 7.1.1984 seeking extension of time to complete the construction. It is clear, the appellant has collected the sale deed from the BDA. He has sought for extension of time. The contention of the respondents that there was no demand by the appellant is meritless. Their own pleadings and evidence of PW.1 clearly show that the appellant was demanding, insisting and pressurising the respondents to execute the sale deed. The respondents have approached the
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Court and obtained injunction. Therefore, the respondents cannot contend that there was no demand to execute the sale deed. No doubt there is no written demand to execute the sale deed. But, the pleadings and evidence of respondents clearly show that there was demand to execute the sale-deed which is sufficient in the circumstances of the case.
115. It was contended that the legal notice Ex.P.6 has not been replied by the appellant. After the death of A.Venkatanarasimhaiah on 7.3.1996, the appellant has demanded the respondents to execute the sale deed. The respondents have denied to execute the sale deed. The appellant has entered caveat on 29.9.1987. In response to that, the respondents have issued legal notice dated 8.10.1987 as per Ex.P6. Thereafter, the respondents have filed suit in O.S.No.5065/87 on 16.11.1987 and obtained injunction. Thereafter, the
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appellant has filed the suit for specific performance on 31.3.89. The legal notice Ex.P6 is in response to the caveat entered by the appellant. Thereafter, the respondents have approached the Court for injunction and obtained temporary injunction. The appellant has appeared and contested the matter. Therefore, there is no merit in the contention that not replying Ex.P6 legal notice is fatal and accordingly, it is rejected. The decisions relied upon by the learned counsel for the respondents reported in AIR 2007 SC page 1256, AIR 2007 Kar. Page 164, AIR 2005 Kar. Page 292, 2009(1) MLJ page 1067 and AIR 1998 MADRAS page 169 to contend that the legal notice Ex.P6 is not replied and therefore, adverse inference has to be drawn cannot be accepted, for the reason, the pleadings and evidence of the respondents themselves show that the appellant was demanding, insisting and pressurizing the respondents to execute
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the sale deed after the death of Venkatanarasimhaiah and the respondents have declined to execute the sale deed. The appellant has entered caveat as per Ex.D32. In response to that, the respondents have issued legal notice Ex.P6 and approached the Court in O.S.No.5065/87 for injunction and obtained injunction. The appellant has appeared and contested the matter. Thereafter, the appellant has filed suit for specific performance. Therefore, it cannot be said that not replying Ex.P6 is fatal and accordingly, it is rejected.
116. It was contended that pleadings and proof in specific performance suit should be in conformity with the provisions of section 16 and form Nos.47 and 48 of the First Schedule in the CPC, otherwise the plaintiff is not entitled for specific performance. Reliance was placed on 1969(2) SCC page 539,
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(2005) 7 SCC page 60, AIR 2000 SC page 860 and 1978 (1) Kar.LJ page 425.
117. In the decisions reported in 1969(2) SCC page 539 and (2005) 7 SCC page 60 and AIR 2000 SC page 860 it has been held, the burden of proving the agreement is on the plaintiff. The plaintiff must prove that the agreement is genuine and he has satisfied the requirement of section 16 and he is entitled for specific performance. The pleadings must conform Section 16 and form Nos.47 and 48 of the first schedule in the CPC. The specific performance can be denied if plaintiff fails to aver and prove readiness and willingness.
118. In the decision reported in 1978 (1) Kar.L.J. page 425, it has been held, the pleadings and proof should be in conformity with the provisions
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of section 16(c) and form 47 and 48 of the First schedule in the CPC.
119. In the present case, the appellant has pleaded all the ingredients of oral sale agreement, namely the sale agreement was dated 17.12.1979. The sale consideration agreed was `16,000/-. It was paid through cheques and cash. The documents were handed over. Possession was delivered. Thereafter, the GPA was executed. The appellant has put up construction at his own cost. He has collected the sale deed from the BDA. The appellant requested the respondents to execute the sale deed. The respondents promised to execute the sale deed. Later on issued legal notice. When asked the respondents told the appellant that it was in response to the caveat petition. The appellant was always and even now ready and willing to take the sale deed bearing expenses of stamp and registration charges.
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Therefore, it is clear, the appellant has pleaded all the ingredients of oral sale agreement. The pleadings conform to Section 16(c) of the Specific Relief Act and Form Nos.47 and 48 of 1st schedule to CPC. The appellant has proved the oral sale agreement as answered in Point No.1. Therefore, there is no merit in the contention that the pleadings and proof does not conform to Section 16(c) of the Specific Relief Act and form Nos.47 and 48 of 1st schedule to CPC and accordingly, it is rejected.
120. It was contended on behalf of the respondents that the alleged sale agreement is dated 17.12.1979. The suit for injunction was filed on 16.11.1987. The suit for specific performance has been filed on 31.3.1989. There is delay and latches on the part of the appellant in filing the suit for specific performance. It is after thought and barred by limitation. There is no merit in this contention, for
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the reason, the question of limitation is already considered by this Court in RFA.No.348/95. It has been held that the suit is within time. Therefore, there is no merit in the contention that the suit is barred by limitation and accordingly, it is rejected.
121. The appellant has proved the oral sale agreement dated 17.12.1979 and his possession. The entire sale consideration amount has been paid. The construction has been put up by the appellant by spending considerable amount. Therefore, in the circumstances, the appellant cannot be denied specific performance and he is entitled for specific performance.
122. The sale agreement is dated 17.12.1979. Considerable time has been spent in the litigation. The respondents have approached the court in O.S.No.5065/87 and obtained injunction. Thereafter,
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the suit for specific performance has been filed. In NIRMALA ANAND vs. ADVENT CORPORATION (P) Ltd., and Others reported in (2002) 8 SCC page 146, the Hon'ble Supreme Court has held that price escalation during the pendency of the litigation cannot be a reason to deny the relief of specific performance. The Court can impose reasonable condition including payment of additional amount by the purchaser and it should not be onerous.
123. On 27.9.2012, the appellant and the respondents 1(a) and 3 had filed compromise petition. The appellant had agreed to receive a sum of `35,00,000/- in lieu of his claim. The respondent No.3 had agreed to pay a sum of `35,00,000/- to the appellant. The compromise was opposed by the second respondent. On 9.10.2012, the learned counsel for the appellant and the learned counsel for the respondents 1(a) and 3 withdrew the compromise
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petition with liberty to file fresh compromise petition with appropriate terms. It was not filed.
124. From the decision of the Hon'ble Supreme Court reported in (2002) 8 SCC page 146, it is clear that mere price escalation during the pendency of the litigation is not a ground to deny specific performance. The Court can impose reasonable condition to pay additional amount which is reasonable. In the present case, the litigation has gone on for years. The respondents have approached the Court in O.S.No.5065/1987 and obtained injunction. They have denied the sale agreement and contested the matter in O.S.No.1920/1989. In the circumstances of case, and keeping in view the price escalation, I consider it proper to direct the appellant to pay additional amount of `20,00,000/- in addition to the amount already paid. The appellant is entitled for specific performance, but subject to the condition that
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the appellant shall pay additional amount of `20,00,000/- to the respondents. Point No.2 answered accordingly.
125. Point No.3: The Trial Court has granted injunction holding that the respondents are in possession. The Trial Court has failed to consider the evidence on record in proper perspective. The appellant has been put in possession of the suit schedule property by virtue of the oral sale agreement dated 17.12.1979. The appellant has obtained sanctioned plan as per Ex.D9 and put up construction by spending considerable amount. The documents produced by the appellant i.e., exhibits D.36 to D.67 clearly show that the appellant has spent considerable amount to put up construction on the suit schedule property. Though the respondents contend that deceased A.Venkatanarasimhaiah had put up construction, they have not produced anything to
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show that A.Venkatanarasimhaiah had put up construction or spent money. In fact, A.Venkatanarasimhaiah has executed power of attorney Ex.D1 and has orally agreed to sell the suit schedule property in favour of the appellant. The documents produced by the appellant clearly show that the appellant has put up construction and he is in possession. The construction has come up upto the lintel level. At that stage, the respondents have approached the Court and obtained injunction. There is nothing on record to show that A.Venkatanarasimhaiah or the respondents have put up construction or spent money. In the circumstances, the respondents cannot contend that they have put up construction or they are in possession of the suit schedule property. The Trial Court was not justified in granting injunction in favour
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of the respondents in O.S.No.5065/1987. Point No.3 answered, accordingly.
126. Point No.4: The Trial Court has decreed the suit for injunction and dismissed the suit for specific performance. The Trial Court has failed to consider the evidence on record in proper perspective. The material on record clearly establishes that there was oral sale agreement dated 17.12.1979 between the appellant and the deceased Venkatanarasimhaiah and the appellant has put up construction. The findings recorded by the Trial Court cannot be sustained in law. Therefore, the impugned judgment and decrees passed by the Trial Court in O.S.Nos.5065/87 and 1920/89 cannot be sustained in law.
Accordingly, the appeals are allowed with cost. The impugned judgment and decrees passed by the
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Trial Court in O.S.No.1920/89 and O.S.No.5065/87 are hereby set-aside. The suit of the appellant in O.S.No.1920/89 for specific performance is hereby decreed directing the respondents to execute the registered sale deed in favour of the appellant in respect of the suit schedule property within four months from the date of this judgment by receiving additional amount of `20,00,000/- from the appellant. The appellant shall deposit the additional amount of `20,00,000/- within three months from the date of this judgment in the Trial Court. If the respondents fail to execute the sale deed, the appellant can get the sale deed executed through the process of court. The suit filed by the respondents in O.S.No.5065/87 is hereby dismissed.
Draw up the decree, accordingly.
Sd/-
JUDGE Dvr:bss.