THE HONOURABLE SRI JUSTICE M.LAXMAN
CITY CIVIL COURT APPEAL No.12 of 1994
JUDGMENT:
1. The present appeal has been directed against the judgment and decree dated 25.10.1993 in O.S.No.892 of 1980 on the file of the V Additional Judge, City Civil Court at Hyderabad, wherein and whereby the suit filed by the appellant herein for specific performance of contract was dismissed.
2. The appellant herein is the plaintiff and the respondents herein are the defendants in the said suit. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the suit.
3. The sum and substance of the case of the plaintiff is that defendant No.1 is owner of land admeasuring Ac.2-20 guntas in Sy.No.91 of Meer Sagar Village, Taluk Urban of Hyderabad District (hereinafter, it is referred to as 'suit property'). The plaintiff and defendant No.1 entered into an agreement of sale dated 26.08.1974 for sale of the suit property. The said sale agreement was for total sale consideration of Rs. 49,900/-. Out of said sale consideration, Rs.5,000/- was paid by the plaintiff in cash 2 ML,J CCCA_12_1994 on the date of execution of the agreement of sale and Rs.5,000/- was paid through demand draft drawn on State Bank of Hyderabad at Sirpur and the balance amount payable was Rs.39,900/-.
4. The agreement also contemplates that the plaintiff shall obtain all the necessary permissions for sale of suit property and get transfer of title as per law. The purpose of purchasing the suit property was to establish a Dall Mill. Accordingly, in pursuance of the agreement of sale, the plaintiff obtained permission from the Hyderabad Urban Development Authority, Hyderabad under Ex.A-14 dated 11.08.1976 and also obtained required permission from the Revenue Department under Ex.A-16 dated 12.09.1980.
5. It is the further case of the plaintiff that while so, in the year 1980, the plaintiff visited the suit property and found that the land was converted into plots by some third party, who had nothing to do with the title and possession of the suit property and executed sale deeds. In the said circumstances, the plaintiff issued legal notice to defendant No.1 dated 14.02.1980 and defendant No.1 issued reply dated 02.04.1980 and thereafter, the present suit has been filed.
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6. Defendant No.1 did not file any written statement, but other defendants, who purchased and in possession of the suit property, filed their written statements. They specifically denied the allegations made by the plaintiff and also denied the existence of agreement of sale between the plaintiff and defendant No.1. They also pleaded that they are bona fide purchasers of the suit property for valid consideration from defendant No.1, as such, they hold the title of the suit property through registered sale deeds. It is their specific pleading that they are in possession of the suit property. Basing on the above pleadings, they prayed to dismiss the suit.
7. On the basis of the above pleadings, the trial Court has framed the following issues:
"1. Whether the plaintiff is entitled for specific performance of contract dated 26.08.1974?
2. Whether the suit agreement of sale is there?
3. Whether the contesting defendants are bonafide purchasers for value without notice?
4. Whether the sales set up by the defendants are null and void as they are in contravention of the provisions of Urban Land (Ceiling and Regulation) Act, 1976?
5. Whether plaintiff is entitled for possession of the suit land?
6. Whether the suit is barred by limitation? 4
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7. To what relief?"
8. The plaintiff, to support his case, examined P.Ws.1 to 3 and relied upon Exs.A-1 to A-18 and X-1 and X-2. The defendants, to support their case, examined D.Ws.1 to 15 and relied upon Exs.B-1 to B-95.
9. The trial Court, after appreciating the evidence on record, found that there is a valid agreement in between plaintiff and defendant No.1. However, the specific performance is denied on the ground that defendant Nos. 2 to 45 raised constructions and were in possession of the suit property. Consequently, the suit was dismissed. Hence, the present appeal at the instance of the plaintiff.
10. Heard.
11. The points emerging for consideration in this appeal are as follows:
"1. Whether the plaintiff has performed or has always been ready and willing to perform his part of obligation as per the agreed terms of the contract all through?
2. Whether the plaintiff is entitled for specific performance, as prayed for?
3. To what relief?"5
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12. The evidence and pleadings on record clearly show that there is agreement of sale in between the plaintiff and defendant No.1 under Ex.A-1. The terms of the said agreement of sale show that on the date of execution of agreement of sale, the plaintiff paid Rs.5,000/- towards advance sale consideration, out of the agreed total sale consideration of Rs.49,900/-. Subsequently, he has paid Rs.5,000/- through demand draft. Thus, the plaintiff paid total sale consideration of Rs.10,000/- leaving balance sale consideration of Rs.39,900/- to be paid at the time of registration of document.
13. The terms of Ex.A-1 show that it is the obligation of the plaintiff to obtain all permissions for sale transaction from various departments/authorities. It is also agreed that the transaction shall be concluded within four (4) months, and if the transaction could not be completed within four (4) months, both the parties mutually can extend the time for a reasonable period. It is further agreed that defendant No.1 shall deliver the vacant possession of the suit land in favour of the plaintiff simultaneously with the execution of the registered sale deed on payment of the balance sale consideration. It is 6 ML,J CCCA_12_1994 also mentioned that if the plaintiff desires to get advance possession of the suit property, he has to pay further amount of Rs.20,000/- and seek advance possession before the execution of the sale deed. The terms of the agreement also show that the plaintiff shall suitably advertise the proposed sale and call for objections, if any, so as to have clear title on the suit property.
14. In the plaint, there is no averment with regard to his readiness and willingness for payment of balance sale consideration all through from the date of execution of the agreement of sale till the date of filing of the suit.
15. The contention of the learned counsel for the plaintiff/appellant is that permission under Exs.A-14 and A-16 clearly shows that the plaintiff had exhibited his readiness and willingness. The said permissions were obtained in the years 1976 and 1977.
16. Learned counsel for the plaintiff/appellant also contended that the period for completion of the sale transaction was referred in the context of obtaining permission from the Government departments/authorities. Obtaining of permissions is uncertain event, as such, there 7 ML,J CCCA_12_1994 was some delay in that regard. Non-issuance of notice for specific performance does not automatically give an inference that the plaintiff has not exhibited readiness and willingness on his part.
17. The evidence relied upon by the defendant Nos.2 to 45 shows that they obtained sale deeds from defendant No.1 and on the basis of the sale deeds, they have raised constructions. The trial Court took the note that as the sale transaction relied by defendant Nos.2 to 45 is invalid, their occupation and constructions over the suit land are also illegal.
17. Admittedly, defendant No.1 is the owner of the subject property and he did not take any steps till date for eviction of the encroachers. The plaintiff has also not sought any relief against defendant No.1 for affecting the eviction proceedings against the encroachers, so that he could get valid title and possession by executing the sale deed in pursuance of agreement of sale. Instead of seeking the said relief, the plaintiff has prayed for specific performance of the contract with defendant No.1. 8
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18. According to the pleadings and evidence of defendant No.1, he is not in possession of the suit property, but the encroachers are in possession of the same. Further, the terms and conditions of the contract clearly show that the original period contemplated by both the parties for concluding the contract was four (4) months and this condition contemplates that all the requirements for obtaining permission for sale transaction must be obtained as expeditiously as possible, which shall not normally more than four months. However, if both the parties mutually agreed for extension of period, reasonable period can be extended to facilitate the plaintiff to obtain permissions for the sale transaction. If the original period is taken into consideration, the reasonable period cannot mean that it shall be more than two years. Receiving certain amounts by defendant No.1/General Power of Attorney and the efforts of the plaintiff in obtaining permissions upto the year 1977 would demonstrate that there was readiness and willingness on the part of the plaintiff upto the year 1977. From 1977 to 1980, absolutely there are no pleadings or no positive acts on the part of the plaintiff, which demonstrates that he exhibited his readiness and 9 ML,J CCCA_12_1994 willingness to perform his part of obligation as agreed between the plaintiff and defendant No.1.
19. Prior to amendment Act of 2018 to the Specific Relief Act, 1963, Section 16 (c) requires that there shall be averment and proof of readiness and willingness. When the pleadings are perused, absolutely there is no pleading to show that the plaintiff has exhibited his readiness and willingness to perform his part of obligation from 1977 to till the date of filing of suit. The evidence also shows that after filing of the suit, the balance sale consideration of Rs.39,900/- was deposited.
20. It is to be noted that for three years, absolutely there is no evidence to demonstrate the exhibition of readiness and willingness on the part of the plaintiff. The trial Court has not framed any issue in this regard which is in violation of Section 16 (c) of the Specific Relief Act, 1963. The plaintiff also failed to comply with the requirements of averments and proof of such readiness and willingness, for the period from 1977 to 1980.
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21. In view of the above, this Court finds that there is absolutely no readiness and willingness on the part of the plaintiff from the year 1977 to 1980.
22. The evidence also demonstrates that the entire illegal transactions were done in the year 1980 which are prior to the filing of the suit. If the plaintiff had exhibited his readiness and willingness immediately after 1977, when he obtained required permissions from the authorities, this situation could have been prevented. It is the plaintiff's own inaction which invited the entire encroachment and illegal constructions over the suit property.
23. The encroachers are in settled possession till today. Defendant No.1 has not initiated any proceedings for their eviction by seeking appropriate relief. The plaintiff even if he got executed the sale deed, he cannot insist any eviction proceedings after lapse of nearly fifty (50) years. Therefore, in the said circumstances, this Court cannot entertain any specific performance even if there is proof that there is a valid agreement of sale between the plaintiff and defendant No.1.
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24. In view of the above, I do not find any illegality in the findings of the trial Court in rejecting the specific performance of the agreement of sale entered into between the plaintiff and defendant No.1. Hence, this appeal is liable to be dismissed.
25. In the result, the appeal is dismissed confirming the judgment and decree dated 25.10.1993 in O.S.No.892 of 1980 on the file of the V Additional Judge, City Civil Court at Hyderabad. There shall be no order as to costs. Miscellaneous petitions, if any, pending, shall stand closed.
______________ M.LAXMAN, J Date: 27.10.2022 TJMR/GVR