CCCA/12/1994
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      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

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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?

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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?"

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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

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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

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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.

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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

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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