IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 55 OF 2001 BETWEEN: Smt P.Sangeetha …APPELLANT AND Smt Susheela Pathak and another …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL No. 55 OF 2001 JUDGMENT: The plaintiff in O.S.No. 22 of 1998 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad, is the appellant herein. 2. The suit was filed for declaration that as the oral contract was there between the plaintiff and the defendants to develop the suit property under development agreement and to declare the oral contract as existing and also for specific performance of the alleged development agreement and to execute the agreement of sale. 3. The allegations in the plaint are as follows: The defendants are the absolute owners of a house bearing MCH No.3-6-660 admeasuring 757 square yards situated at Lane No.9, Himayatnagar, Hyderabad, having inherited from Sri S.R. Pathak, who had earlier purchased the same in public auction conducted on 16.05.1955, under the provisions of Section 20 of Displaced Persons (Compensation and Rehabilitation) Act, 1954. Sri S.R.Pathak expired on 12.01.1968 leaving behind his widow, daughter and his son by name Sharad Kumar Sri Padarao Pathak. Subsequently, on 29.08.1970 Sharat Kumar Sri Padarao Pathak expired at Bombay unmarried. Hence, the defendants are the only surviving legal heirs of late S.R. Pathak and entitled to deal with the house bearing No. 3-6-660, admeasuring 757 square yards situated at Lane No.9, Himayatnagar, Hyderabad. As things stood thus, the defendants have shifted their residence to Bombay and therefore, intended to dispose of the suit schedule property. Having satisfied with the past track record of the plaintiff, the defendants approached the plaintiff offering to involve the suit schedule property for development. The plaintiff being a professional contractor agreed to undertake the development activity over the suit schedule property and summoned the documents from the defendants. The defendants have handed over the original legal opinion concerning to the suit schedule property issued by the office of M/s. Ganu & Co., Advocates, dated 26.06.1997 to the plaintiff. The defendants have also handed over some documents to the plaintiff. The plaintiff and defendants agreed to share the flats. The flats in 1st, 3rd and 5th floors are to be allotted to the plaintiff and the flats in 2nd & 4th floors are to be taken by the defendants. The above said facts were reduced in writing on the plan prepared by the plaintiffs and duly signed by the plaintiff and representative of the defendants on 21.06.1997. The defendants have also agreed to execute the irrevocable General Power of Attorney in favour of the plaintiff. The plaintiff demanded the defendants to evict one M.Venkat Rao from the schedule property and hand over the vacant possession. The said tenant also filed a suit for injunction. The defendants were also trained to deliberate with other builders to involve in development of the schedule property. The plaintiff has spent much money. The defendants also admitted the agreement in O.S.No.2905 of 1997. The defendants have been postponing to perform the contract. Hence the suit. 4. The defendants filed a written statement denying the alleged oral contract and the agreement to enter a development agreement. There was only a discussion for outright sale of the property and there was no concluded contract. The husband of the plaintiff was informed about the occupation of the premises by one M.Venkat Rao. There were no suppression of facts. The defendants have never admitted the contract or developmental agreement in the earlier suit. During the February and March, 1997 Shyamsunder, the husband of the plaintiff, approached the defendants for the proposal to purchase the suit schedule property. The defendants wanted to sell the property, as they wanted to shift to Bombay. However, he was not in a position to arrange for the consideration and wanted to take up a project for development and legal opinion was sought. The paper publication was given by the plaintiff’s counsel without any agreement. There was no concluded contract. The suit as filed by the plaintiff is not maintainable. The alleged contract is not enforceable. Therefore, the defendants pleaded for the dismissal of the suit. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the plaintiff is entitled for the relief of declaration as prayed for? 2) Whether the plaintiff is entitled for the relief of develop agreement to be executed by the defendants as prayed for? 3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? 4) To what relief? 6. On behalf of the plaintiff, PWs. 1 and 2 were examined and marked Exs.A-1 to A-11. On behalf of the defendants, 1st defendant was examined as DW.1 and no documents were marked. 7. After considering the evidence on record, the learned IV Senior Civil Judge, City Civil Court, Hyderabad, dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 8. The points that arise for consideration are: 1) Whether the contract and the agreement for development pleaded by the plaintiff is true? 2) Whether the plaintiff is entitled for the relief claimed and the rejection of the claims by the lower Court is legal and sustainable? 3) To what relief? 9. POINTS: There is no dispute about the fact that the suit schedule property belongs to the defendants. It is the case of the plaintiff that there was an oral agreement to give the property for development at proportionate shares of 60:40 and in pursuance of that agreement, some legal opinion was also taken and plans were drawn and the representative of the defendants has signed on the plans. But, subsequently, the defendants did not perform the contract and as such, the suit was filed for the reliefs. As against this claim of the plaintiff, the specific case of the defendants is that there was an only proposal for out and out sale and there was never any intention to give the property for development. It was also the plea of the defendants that one Venkat Rao, who filed the suit for injunction, was a tenant and this fact was also known to the plaintiff. Therefore, according to the defendant, the suit was rightly dismissed by the lower Court. 10. This being a suit based on oral agreement and promise, the burden is very heavy on the plaintiff to prove the same. The law is well settled that in cases of this nature, it is necessary that the particulars of the oral agreement have to be pleaded and proved with specific particulars. In fact, the plaint does not disclose the dates as to when the discussions have taken place and who were present and through whom PW-1 has approached. In order to substantiate the plea of oral agreement, reliance is placed on the evidence of PW-2. Evidently, the case of the defendants is that there was only an offer to sell the property. But, PW-1 wanted for development purpose and he has no capacity and matter was referred to legal opinion. Therefore, from the pleading of the defendants, there was only proposal moved by the plaintiff. 11. In order to substantiate the claim of the plaintiff that there is an agreement for 60:40 proportionate construction, reliance is placed on the evidence of PW-2 and Ex.A-11. Evidently, PW.2 was said to be casually present in June, 1998. He was not called for any settlement of the bargain. Even according to his evidence, the defendants wanted to sell the property and purchase a flat at Bombay. They sought his advice as to the implications of the income tax and the plaintiff was also present and this was happened in June, 1997. He informed that there would be no income tax liability for the defendants. At that time, the plaintiff and PW-1 were having Ex.A-11 and Ex.X-1. They asked him that if they gave offer in terms of Ex.A-11 and Ex.X-1 instead of outright share what would be the tax liability. He has taken Ex.X-1 to Bombay and studied and has written something on Ex.X-1. In cross-examination, he stated that he did not write anything on the top of Ex.A-11. He also admitted that he had no authority on behalf of the defendants. This evidence of PW-2 will not in any way advance the case of the plaintiff. Even according to his chief examination, a copy of proposed plan, Ex.X-1 was given for him to study and to tell about the tax implications. This was done by PW-1. In all these discussions, the presence of the defendants and their consent was not spoken. Therefore, there is no material to come to a conclusion on the basis of Ex.A-11 that the defendants have agreed for construction of the flats as per Ex.A-11 and that there was a concluded contract. In fact, if Ex.A-11 was to be taken as a document about the rights of the parties, there is no reason as to why the consent of the defendants was not taken on Ex.A-11 for the proposed plan. Therefore, even the evidence of PW-2, which was produced before the Court, will only help the case of the defendants and will not advance the case of the plaintiff. The allegations of the oral contract of sale are very vague. In fact, the fact that the tenant was in the building is a verifiable fact and allegation that this fact was suppressed by the defendants cannot also be accepted. Merely because the plaintiff has given a publication in the paper that he intends to purchase the property, it does not mean that an agreement has been entered between the parties. Exs.A-3 to A-7, which were said to be the publications, the publication is only to the effect that the plaintiff is intending to develop the property and calling for objection to the title from any other persons. Therefore, even this publication does not show that there was concluded contract between the parties. The learned IV Senior Civil Judge has discussed the legal aspects about the standard of proof and the failure of the plaintiff to establish the claim and has given sufficient reasons to disbelieve the contract and I do not find any reason to interfere with the judgment and decree of the lower Court. Accordingly, the points are answered. 12. In the result, the appeal is dismissed without costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 18-03-2011. INL