Andhra HC (Pre-Telangana)
P. Prabhakara Rao vs P. Krishna on 22 December, 2006
Equivalent citations: AIR2007AP163, 2007(2)ALD655, 2007(4)ALT569, AIR 2007 ANDHRA PRADESH 163, 2007 (4) ALL LJ NOC 590, 2007 (3) AJHAR (NOC) 874 (AP), 2007 (4) AKAR (NOC) 470 (AP), 2007 A I H C (NOC) 362 (AP), (2007) 2 ANDHLD 655, (2007) 4 ANDH LT 569
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. These second appeals are in between the same parties and in respect of the same property. They arise out of two suits, which were clubbed and disposed of together.
2. The appellant is the owner of Plot No. 38, Municipal No. 10-3-32/9/35, East-Marredpally, Secunderabad; admeasuring 388.8 Sq.yards. He is the original allottee of the said plot by a Co-operative Housing Society, and purchased the same through the sale deed, dated 26-10-1977. The appellant was an employee of Geological Survey of India (GSI), and he mortgaged the plot on 28-4-1984 to the President of India, to obtain loan for construction of house. The respondent is related to the appellant. According to the appellant, a portion of the house was given, on rent, to the respondent, and the rent was paid regularly, till January 1996, and thereafter, the latter committed default. Appellant got issued a notice, dated 10-3-1997, requiring the respondent to vacate the premises.
3. A reply dated 23-3-1997 was got issued by the respondent, disputing the very ownership of the appellant, over the plot.
He stated that, when he was attempting to purchase the house, the appellant volunteered to sell half portion of his property for a consideration of Rs. 95,000/-. He stated that a sum of Rs. 45,000/- in three parts, viz., Rs. 10,000/-; Rs. 28,000/-; and Rs. 7,000/-, was paid during 1985, and that the rest of the amount was paid in monthly installments of Rs. 1,000/-, in all Rs. 95,000/-. It was also his case that he spent a sum of Rs. 50,000/-, for repairs of the premises. Through the reply he demanded the appellant to execute a sale deed, for the property.
4. After exchange of notices, the respondent filed O.S. No. 122 of 1997 in the Court of III Senior Civil Judge, City Civil Court, Secunderabad, for specific performance of alleged oral agreement of sale, and for injunction; to restrain the appellant from alienating the property. Apart from repeating the contents of his reply notice, dated 23-3-1977, the respondent specifically stated that the agreement, between himself and the appellant, was oral in nature. It was stated that against the total consideration of Rs. 95,000/-, a sum of Rs. 94,000/- was paid, and that he is ready and willing to pay the balance of Rs. 1,000/-, as and when the appellant comes forward to execute the sale deed. A tabular statement was also furnished in it, indicating the particulars of payment. He pleaded that the cause of action arose in October, 1985, when the appellant is said to have agreed to sell the property, and received advance, and on subsequent dates, when the remaining sale consideration was received. The appellant filed O.S. No. 50 of 2000 in the same Court (initially filed in a different Court and thereafter transferred), for the relief of eviction of the respondent, and for recovery of arrears of rent.
5. Except, for minor changes, the contents of the written-statement in O.S. No. 122 of 1997 were repeated in the plaint in O.S. No. 50 of 2000 and vice versa.
6. The trial Court clubbed both the suits, and through common judgment dated 18-12-2000, it decreed O.S. No. 122 of 1997 and dismissed O.S. No. 50 of 2000. The appellant filed A.S. Nos. 29 and 30 of 2001 in the Court of I Additional Chief Judge, City Civil Court, Secunderabad, against the judgment and decrees in O.S. Nos. 122 of 1997 and 50 of 2000, respectively. The appeals were dismissed through common judgment dated 15-9-2004. Hence, these two second appeals.
7. Sri B. Adinarayana Rao, learned Counsel for the appellant submits that the so-called oral agreement of sale, pleaded by the respondent, was non-existent, and the respondent did not discharge his burden, to prove the same. He contends that the Courts below proceeded, as though mere proof of an oral agreement, that too, on the sole testimony of the respondent; is sufficient to decree the suit for specific performance, and such an approach is contrary to Section 20 of the Specific Relief Act (for short 'the Act'). He submits that there existed several factors, ranging from lack of bona fides, to laches, in filing the suit, to deny the relief of specific performance, to the respondent. He further contends that the evidence on record clearly discloses that there was no consensus ad idem, and thereby, no basis existed for the suit. It is also his case that the evidence on record clearly established that the respondent was only a tenant, and the suit for eviction ought to have been decreed.
8. Smt. W.V.S. Rajeswari, learned Counsel for the respondent, on the other hand, submits that her client did not insist on a written agreement, in view of his close relation with the appellant, and that all the ingredients of agreement of sale were proved by him, through cogent evidence. She contends that the appellant admitted the factum of receipt of various amounts from the respondent, but had made an unsuccessful attempt to treat them as monthly rents. She submits that the minor discrepancies, that existed in the stand taken by the respondent in his reply, the plaint and evidence; are sought to be projected as leading to lack of consensus ad idem, and the Courts below were satisfied that the respondent made out a case for specific performance. Learned Counsel contends that the concurrent findings of facts, recorded by the Courts below cannot be interfered with, in a second appeal, under Section 100 of C.P.C.
9. While the respondent filed a suit for specific performance of an oral agreement of sale, the appellant filed another suit for the relief of eviction, and recovery of arrears of rent, in respect of the same property. The suits were clubbed. The trial Court framed the following issues:
O.S. No. 122 of 1997:
1. Whether the oral agreement of sale in favour of the plaintiff is true and valid?
2. Whether the plaintiff is a tenant of the schedule premises as contended by the defendant?
3. Whether the plaintiff is entitled to the specific performance of the oral agreement of sale?
4. Whether the plaintiff is entitled to the perpetual injunction prayer for?
O.S. No. 50 of 2000:
1. Whether the plaintiff is entitled for recovery of vacant possession of the suit schedule property?
2. Whether the plaintiff is entitled for Rs. 14,000/- towards arrears of rent and Rs. 6,650/- towards damages for occupation till date of delivery of possession of the property as prayed for?
10. The respondent deposed as PW-1, and no other witnesses were examined. Exs. A-1 to A-54 were filed by the respondent. Out of these documents, Exs. A-1 to A-52 are the receipts, for payment of various amounts. Ex.A-53 is the notice, got issued by the appellant, and Ex.A-54 is its reply. The appellant deposed as DW-1, and he filed Exs. B-1 to B-49. Ex.B-1 is the sale deed, through which he purchased the plot. Ex.B-3 is a deed of mortgage; Ex.B-4 is a supplementary mortgage deed; Ex.B-5, dated 7-8-1996, is a document, releasing the mortgage. Exs. B-6 to B13 are receipts for payment of house tax; Exs. B-14 to B-47, related to demand and payment of water charges, and Exs. B-48 and B-49 are plans, sanctioned by the Municipal Corporation, on 16-3-1984 and 18-3-1996, respectively. The lower appellate Court framed two points, broadly covering the controversy in the respective suits for its consideration, as under:
(1) Whether there is any oral agreement of sale in favour of the plaintiff in O.S. No. 122/97 and if so whether he is entitled for specific performance of the said oral agreement of sale.
(2) Whether the plaintiff in O.S. No. 122/ 97 and defendant in O.S. No. 50/2000 is tenant in the schedule premises and whether the plaintiff in O.S. No. 50/2000 is entitled for recovery of vacant possession and arrears of rents and damages prayed for?
11. In view of the elaborate grounds pleaded in the memorandum of second appeal, and the submissions made by the learned Counsel for the parties, this Court is of the view that the following questions arise for consideration in these second appeals:
(a) Whether the existence of consensus ad idem, in a contract is not essential, for it to be enforced in law.
(b)Whether a decree for specific performance of an agreement on account of its mere existence, would accord with the principles enunciated in Section 20 of the Specific Relief Act.
A third question, which would depend upon the answers to the two questions, referred to above; would be,
(c) whether the appellant made out a case for eviction of the respondent from the premises.
12. A written contract, particularly in respect of immovable property, is not only desirable, but also would be helpful in ascertaining the terms of contract. All the same, law recognizes the freedom of the parties, to enter into oral agreements also. By its very nature, an oral agreement places relatively heavier burden upon the person, pleading it, when compared to the one, that is needed, in respect of a written agreement. Further, the bona fides and truthfulness of a person, pleading oral agreement, are put to a more stringent test, than the one, adopted in cases of written agreements. The findings, that may be recorded on the conduct of the parties, in such cases; would have their own impact upon the nature and extent of discretion, which the Court may exercise, in the matter of granting, or denying the relief of specific performance of such agreements. A major area of difference between written and oral agreements is the matter of discerning and ascertaining the consensus ad idem of the parties. In the former, the clauses in the agreement reflect it, virtually, excluding speculation or guess work. Oral agreements, on the other hand present a stupendous task to the Courts, in this regard. The adjudication in such cases would depend, mostly on oral evidence. The difference between oral and documentary evidence, is age old. The following verse from Narada Smriti demonstrates it:
Sakshibhyo likhitam gnyeyam likhitanna to sakshinah A writing is superior to witnesses, witnesses are not superior to writing (See Narada Smithi verse 145).
13. In Brij Mohan v. Sugra Begum , the Hon'ble Supreme Court made the following observations, in respect of oral agreements.
Para 20 : We have given our careful consideration to the arguments advanced by learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned Counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such tenns which had already been settled and concluded in the oral agreement.
14. As regards consensus ad idem, the Supreme Court observed in Mayawanti v. Kaushalya Devi , as under:
Para 18 : The specific perfomiance of a contract is the actual execution of the contract according to its stipulations and terms, and the Courts direct the party in default to do the very thing which he contracted to do. The stipulations and terms of the contract have, therefore, to be certain and the parties must have been consensus ad idem. The burden of showing the stipulations and terms of the contract and that the minds were ad idem is, of course, on the plaintiff. If the stipulations and terms are uncertain, and the parties are not ad idem, there can be no specific performance, for there was no contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agreement. Negotiations thereafter would also be material if the agreement is rescinded.
15. In an agreement for sale of immovable property, certain salient features, which are common to all contracts, can be listed. They include, a) identity of the property; b) consideration for sale; c) mode of payment thereof; d) the timing and method of delivery of possession; e) the period, within which the contract must be concluded; and f) the consequences must ensue, on account of non-compliance with the conditions. While in a written contract, these conditions are, by and large, reflected with clarity and certainty, in an oral agreement, they must be proved through reliable evidence.
16. Though it is a second appeal, an occasion arises for this Court to delve into the evidence in slight detail, not for the purpose of re-appreciating it, or for reexamining the findings of the Courts below, but to see, whether the consensus, on an important aspect, existed.
17. The fact that the respondent was residing in the premises belonging to the appellant, and that the latter received certain payments; is not in dispute. The controversy between the parties started with the issuance of notice dated 10-3-1997 (Ex. A-53), by the appellant; seeking eviction of the respondent. The respondent issued a reply, dated 23-3-1997 (Ex. A-54). The respondent has even disputed the assertion of the appellant, that he is the exclusive owner of the premises bearing No. 10-3-32/ 9/35. Further, he pleaded that there existed an agreement for sale of the property, in which he is residing. The relevant portion reads as under:
Ex. A-54.... Your client is related to my client. Your client is my client's father's sister's son (cousin). He had constructed a house which could not be completed. Your client had approached my client during 1985 offering to sell half portion of the property to meet the cost of construction of house. It was offered to be sold for a sum of Rs. 95,000. My client agreed for the same. By then your client had mortgaged the property with his employer and your client was not in a position to get the property redeemed immediately. He was collecting money as and when required. Thus he collected a sum of Rs. 10,000/- on one occasion, Rs. 28,000/- on another occasion and Rs. 7,000/- on third occasion, in all Rs. 45,000/-. After receipt of Rs. 45,000/-, my client was asked to pay Rs. 1,000/- per month. In that fashion, my client paid a total sum of Rs. 95,000/-. Your client had acknowledged receipt of amounts clearly showing that amount is being received towards sale consideration. Not only he paid a sum of Rs. 95,000/-, my client had also spent about Rs. 50,000/- for making certain additions and alterations to the portion of the house under his occupation, which was offered for sale to him. Final payment was made during 1989....
18. It has to be first examined, as to whether there existed consensus ad idem, as regards the property, which was said to have been agreed to be sold in favour of the respondent. The plaint schedule reads as under:
All the portion of premises (western half portion) bearing No. 10-3-32/9/35, standing on Plot No. 35, admeasuring 133 Sq.yards, situated at East Marredpally, Secunderabad, and bounded by, North : by road, South : by neighbour's house, East : by remaining portion of House No. 10-3-32/9/35 under occupation of defendant, and West : by neighbour's house.
19. It is important to note that the reply is silent, as to whether the agreement is oral or written, in nature. It is also silent about the point of time, at which the property was delivered to him.
20. It is not in dispute that the total extent of Plot No. 35, is 388.8 Sq. yards, and half of it, would come to 194.4 Sq. yards. In his reply, in Ex.A-54, the respondent stated that the appellant agreed to sell half of the portion of the property, to meet the cost of construction of the house. In his chief-examination, die respondent, as PW-I, stated; "that the appellant agreed to sell the western half of the plot, with incomplete construction, for Rs. 95,000/- after bargain. In his cross-examination, he stated as under:
...The total extent of Plot No. 35, is approximately 360 Sq. yards. The western portion which is presently in my occupation was initially partly constructed by the defendant. I cannot say the year in which the defendant completed the construction in the other portion now in the occupation of the defendant and myself. I do not remember the date when the consensus was arrived between me and the defendant in respect of purchase of a portion. I cannot say the area, I intended to purchase on the date of transaction. The witness adds : I agreed to purchase half of the building in the suit plot. Now I am in possession of two rooms, a kitchen and W.C. and bathroom. I cannot say the extent of site covered by the above room. It is not true to say that I am in possession of 40 Sq. yards of constructed portion as a tenant. The extent of the area covered by two rooms, a kitchen and W.C. and bathroom may be around 40 Sq. yards....
21. From this, it is clear that there is not only ambiguity, but also contradiction as to the extent and nature of property, which is said to be the subject-matter of oral agreement.
22. Another important aspect is that the whole of the consideration was said to have been paid during the year 1989. The oral agreement was pleaded, for the first time in the plaint. After stating the manner in which the deal between himself and the appellant was struck, the respondent stated in the plaint : "all these talks were not reduced to writing". A tabular statement of the dates and details of payment was furnished. While in Ex.A-54 it was stated that the entire consideration was paid, in the plaint he pleaded that a sum of Rs. 94,000/-is paid and that there existed a balance of Rs. 1,000/-. The respondent did not indicate the agreement as to the method of payment. The details furnished by him, in the plaint, may have a bearing upon the compliance of the conditions. In the absence of a specific plea as to the method of payment, it is difficult to infer that the alleged payment itself reflects the condition.
23. So far as the delivery of possession is concerned, Ex.A-54 is silent about the timing; whereas in the plaint, it was pleaded that the respondent was inducted into possession in the first week of November, 1985. It is to be noted that the first payment, of Rs. 28,000/- is said to have been made on ' 9-10-1985.
24. A specific plea was taken in the plaint, that the appellant was acknowledging the receipt of the amounts "in a diary maintained by the plaintiff' (respondent). Entries in a diary are naturally to be made on the page of the diary, reflecting the date of payment. If the date of payment does not correspond with the date in the concerned page of the diary, the entry cannot be said to be made, a diary maintained by the concerned person". The table, which is made part of the plaint, contains three columns viz., serial number, date and amount paid. For every payment, the respondent filed an exhibit. The payments made through Exs. A-1 to A-52, constituted the basis for the Courts to grant the reliefs of specific performance. On every receipt, the appellant endorsed the month, in which the amount is said to have been made. The receipts, except one, are in the writing of the respondent, and there are striking offs and interpolations in many of them. The following table would reflect the state of affairs:
Ex. Amount Date put under Month and year Date printed on
No. the signature of of the alleged the page of the dairy
the appellant installment
A1 28,000/- 9-10-1985 August 1985 9th October, 1985
A2 10,000/- 26-11-1985 November, 1985 26th November, 1985
A3 7,000/- 11-12-1985 January, 1985(Struck off) 11th December, 1985
A4 1,000/- 8-1-1986 January, 1986 (Struck off) 27th November, 1985
A5 1,000/- 9-2-1986 February, 1986 29th November, 1985
(interpolated) (Struck off)
A6 1,000/- 8-4-1986 April 1986 (struck off) 17th December, 1985
(January 1986)
A7 1,000/- 9-4-1986 April, 1986 (smudged) 3rd December, 1985
A8 1,000/- 16-4-1986 March, 1986 1st December, 1985
(year interpolated)
A9 1,000/- 8-5-1986 May, 1986 4th December, 1985
(year interpolated)
A10 1,000/- 15-7-1986 July, 1987 5th December, 1985
(year corrected)
All 1,000/- 9-8-1986 August, 1986 7th December, 1985
A12 1,000/- 6-9-1986 September, 1986 8th December, 1985
A13 1,000/- 00-10-1986 October, 1986 9th December, 1985
A14 1,000/- 00-11-1986 November, 1986 10th December, 1985
A15 1,000/- 22-12-1986 December, 1986 12th December, 1985
(month of July written and stmck off)
A16 1,000/- 00-1-1987 January, 1987 13th December, 1985
A17 1,000/- 13-2-1987 February, 1987 14th December, 1985
A18 1,000/- 8-3-1987 March (year not indicated) The page does not
contain particulars of the date of the dairy
(NB : This is not in the handwriting of the respondent)
A19 1,000/- 9-5-1987 May, 1986 18th December, 1985
(year interpolated)
A20 1,000/- 8-6-1987 June, 1987 19th December, 1985
A21 1,000/- 9-7-1987 July, 1987 20th December, 1985
A22 1,000/- 9-8-1987 August, 1987 21st December, 1985
A23 1,000/- 8-9-1987 September, 1987 22nd December, 1985
A24 1,000/- 10-11-1987 October, 1987 23rd December, 1985
A25 1,000/- 10-11-1987 November, 1987 24th December, 1985
A26 1,000/- 8-12-1987 December, 1987 25th December, 1985
A27 1,000/- 9-1-1988 January, 1988 26th December, 1985
(struck off)
A28 1,000/- 8-2-1988 February, 1988 27th December, 1985
A29 1,000/- 9-3-1988 March, 1988 28th December, 1985
A30 1,000/- 9-4-1988 April, 1988 29th December, 1985
A31 1,000/- 8-5-1988 May, 1988 2nd February, 1987
A32 1,000/- 9-6-1988 June, 1988 6th February, 1987
A33 1,000/- 7-7-1988 July, 1988 7th February, 1987
A34 1,000/- 8-8-1988 August, 1988 9th February, 1987
A35 1,000/- 8-9-1988 September, 1988 10th February, 1987
A36 1,000/- 8-10-1988 October, 1988 11th February, 1987
A37 1,000/- 8-11-1988 November, 1988 12th February, 1987
A38 1,000/- 8-12-1988 December, 1988 13th February, 1987
A39 1,000/- 7-1-1989 January, 1989 14th February, 1987
A40 1,000/- 8-2-1989 February, 1989 16th February, 1987
A41 1,000/- 10-2-1989 December, 1989 27th February, 1987
A42 1,000/- 8-3-1989 March, 1989 17th February, 1987
A43 1,000/- 8-4-1989 April, 1989 18th February, 1987
A44 1,000/- 8-5-1989 May, 1989 19th February, 1987
A45 1,000/- 8-6-1989 June, 1989 20th February, 1987
A46 1,000/- 8-7-1989 July, 1989 21st February, 1987
A47 1,000/- 8-8-1989 August, 1989 23rd February, 1987
A48 1,000/- 8-9-1989 September, 1989 24th February, 1987
A49 1,000/- 8-10-1989 October, 1989 25th February, 1987
A50 1,000/- 8-11-1989 November, 1989 26th February, 1987
A51 1,000/- 8-6-1986 July, 1986 5th December, 1985
(It was written thrice and stock off)
A52 1,000/- 00-1-1990 January, 1990 28th February, 1987
(not signed) (This does not contain any date)
Total : 94,000/-
25. From the above, it is very clear that, pages from the diary of 1985, for the months of November and December, were utilized for the alleged receipts for the years 1985 to 1988 and those for the month of February, from the diary of 1987; were utilized for alleged receipts for payment of installments of the years 1988 and 1989. It is not as if the parties to the alleged agreement are illiterates, or that they hail from a remote village, so that it can be inferred that they did not have the necessary facility to reduce the terms of the agreement into writing, or that they did not possess the stationery to prepare the receipts. Both of them were employed in prestigious organizations, and are living in one of the posh localities in Secunderabad. The manner in which, indiscriminate entries were made and struck off, or irrelevant pages in the diaries were utilized; would certainly tell upon the credibility of the transaction, pleaded by the respondent.
26. There would not have been any difficulty even to ignore the inconsistencies, referred to above, had the respondent stated that a particular mode of payment of the consideration was agreed to, and examined one or two witnesses, to substantiate it. As observed earlier, except the evidence of the respondent, no other oral evidence was adduced by him, to speak to the factum of conditions of oral agreement. It is just unthinkable that a person, who is said to have sold half of his property in a posh locality, that too, for the purpose of completing the construction; had agreed to receive consideration, at the rate of Rs. 1,000/- per month, spread over about four years. Unfortunately, the Courts below have accepted the deposition of the respondent, and the contents of Exs. A-1 to A-52; as gospel truth.
27. The respondent 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 a notice from the appellant demanding vacant possession. It needs to be noticed that even where a written agreement is pleaded, it must be proved by examining the persons, who witnessed it, and by adducing other cogent evidence. When the burden is heavier, in cases of oral agreements, the respondent wound up his show, by deposing with his solitary oral evidence. In the cross-examination he stated as under:
...At the time of this transaction, my younger brother Guruprasad was present. It is not mentioned in the plaint that Guruprasad was also present at the time of oral agreement....
28. Guru Prasad was not examined as a witness. A presumption provided for under Section 114(g) of ilie Evidence Act, straightaway gets attracted, and it would certainly tell upon the proof of the oral agreement.
29. The cumulative effect of the above discussion is that, the respondent failed to prove existence of consensus ad idem, as regards the alleged oral agreement of sale, and the Courts below did not observe the settled principles of law, in coming to the conclusion that the oral agreement was proved.
30. The second question relates to the principles contained in Section 20 of the Act. It hardly needs any emphasis that mere existence of an agreement of sale, be it, oral, or written, by itself, does not constitute the basis for granting the relief of specific performance. The relief is discretionary in nature, and the exercise of discretion is to be guided by settled principles of law. Bona fides of the party, who approaches the Court for the relief; and his conduct, are important factors, to be taken into account. Assuming that the agreement is proved and genuine, the circumstances, referred to, under Sub-section (2) of Section 20 of the Act, are demonstrably present in the instant case.
31. The trial Court itself found that the hands of the respondent were not clean, in view of the fact that he pleaded payment of the entire consideration in Ex. A-53; whereas in the plaint, he took a different stand. However, it took the view that the hands of the respondent are not so dirty, as to disentitle him to get the relief. When the respondent failed to explain several inconsistent and unnatural circumstances, that are evident from his stands taken before and after filing the suit, there was no basis for the Court to grant the discretionary relief to him. In certain cases, the Supreme Court held that even though the suit for specific performance of an agreement to sale is round to be within limitation, the gap between the date of agreement and the date of filing of the suit would be a factor, to refuse the relief. Therefore, this Court finds that there existed several factors that disentitled the respondent from being granted the relief of specific performance.
32. In view of the findings on questions 1 and 2, the further necessity arises to examine, as to whether the appellant is entitles to get the decree for eviction of the respondent.
33. Basically, the respondent failed to prove that he was inducted into possession of the property, under the alleged oral agreement of sale. It has already been pointed out, that he did not state the date, on which he was inducted into possession. It was stated to be November, 1986. Even according to him, the first of the payment was made in October, 1986. The appellant, on the other hand, specifically pleaded that the respondent was inducted into possession, as a lessee, on a rent of Rs. 1,000/- per month. Had the respondent been in possession, in his own right, otherwise than as a tenant, he was expected to pay the municipal tax, water bills, etc. He did not place even a single document, touching on these aspects. The appellant on the other hand, filed the receipts for property tax, supply of water, for the entire premises upto date.
34. It is permissible in law, for the holder of an agreement of sale, to take shelter under Section 53-A of the Act, even if a suit for specific performance fails. Assuming that there existed an agreement of sale, followed by possession, the respondent did not take such a plea in his written-statement, filed in O.S. No. 50 of 2000. Therefore, he became liable to be evicted.
35. Accordingly, the second appeals are allowed and the judgment and decrees passed in O.S. Nos. 122 of 1997 and 50 of 2000 on the file of the III Senior Civil Judge, City Civil Court, Secunderabad, dated 18-12-2000, as confirmed by the Court of I Additional Chief Judge, City Civil Court, Secunderabad, in A.S. Nos. 29 and 30 of 2001, respectively, are set aside. Consequently, O.S. No. 122 of 1997 is dismissed, and O.S. No. 50 of 2000 is decreed, directing eviction of the respondent herein from the plaint schedule premises. A decree for mesne profits, for arrears of rent of Rs. 14,000/- from February 1996 to March 1997; is passed. For the ascertainment of damages from the date of filing of the suit, till the date of recovery of possession, it shall be open to the appellant herein, to file an application under Rule 12 of Order 20 C.P.C., and as and when such application is filed, it shall be decided, on its own merits.
36. There shall be no order as to costs.