THE HON’BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 121 of 2004. JUDGEMENT This second appeal is directed against the Judgement and Decree dt. 18.11.2003 in A.S.No. 276 of 2002 passed by the XIV Additional Chief Judge, City Civil Court, Hyderabad reversing the Judgement and Decree dt. 31.12.2001 in O.S.No. 2750 of 1998 passed by the V Junior Civil Judge, City Civil Court, Hyderabad. I have heard the learned Counsel for the appellant/1st defendant and the learned Counsel for the respondent/plaintiff. For the sake of convenience, the parties will be referred as the plaintiff and the defendants. The plaintiff filed O.S.No. 2750 of 1998 for specific performance of contract of an oral agreement to sell a house situated at Yousufguda, Hyderabad and for recovery of possession of the suit schedule house. The learned trial court dismissed the suit filed by the plaintiff and the same was reversed by the 1st Appellate Court by the Judgement and Decree challenged in this second appeal. The second appeal was admitted on the following substantial questions of law: i) Whether the 1st Appellate Court erroneously dealt with the issue of limitation and wrongly held that the suit is within limitation. ii) Whether the suit O.S.No. 2750 of 1998 is maintainable in view of the dismissal of O.S.No. 4727 of 1994 filed by the plaintiff. iii) Whether the 1st Appellate Court erroneously held that the plaintiff has discharged the burden of proof with regard to alleged oral agreement to sell and wrongly held that the burden shifted to the defendants to disprove the version of the plaintiff. iv) Whether the 1st Appellate Court erred in law by holding that there is privity of contract between the plaintiff and the 1st defendant and also between the plaintiff and the 2nd defendant. v) Whether the findings of fact recorded by the trial court are contrary to the evidence on record and perverse. Now I narrate the brief facts of the case, which are necessary for consideration of this second appeal. The 1st defendant is the original allottee of the suit house bearing No. A-73, situated at Nakula Ramchandra Reddypuram colony, Yousufguda, Hyderabad. The Hyderabad Urban Development Authority (HUDA), the 2nd defendant in the suit allotted the suit house to the 1st defendant. This fact is not in dispute. The plaintiff asserted that there was an oral agreement on 28.12.1984 between her and the 1st defendant under which the 1st defendant agreed to sell the suit house to her for a sale consideration of Rs. 17,000/- and she has to pay the remaining instalments to the 2nd defendant and in pursuance of the said oral agreement, she paid an amount of Rs. 17,000/- to the 1st defendant and she also paid instalments to the 2nd defendant on behalf of the 1st defendant. According to the plaintiff when the officials of the 2nd defendant, at the instance of 1st defendant tried to evict the plaintiff from the suit house by force, she filed O.S.No. 4727 of 1994 and the same was dismissed for default and subsequently she filed the present suit. It has been contended by the 1st defendant in his written statement that there was no oral agreement to sell the suit house to the plaintiff at any time and the said plea of the plaintiff is false. His version is that when he was transferred from Hyderabad to Machilipatnam in the year 1982, he requested his friend Syed Aziz to look after and maintain the suit house and he was sending monthly instalments payable to the 2nd defendant to the said Aziz Ahmed and he was paying the said amount. The contention of the plaintiff that she paid some instalments to the 2nd defendant was denied. According to the 1st defendant, his friend Aziz Ahemed admitted the plaintiff to occupy the suit house and after his (Aziz Ahemed) death in the year 1992, the plaintiff continued in possession of the suit house and did not vacate the same. It was further pleaded that he represented to the 2nd defendant to evict the plaintiff from the suit house and they were taking steps. It was further stated that the suit O.S.No. 4727 of 1994 filed by the plaintiff for permanent injunction was dismissed for default and the plaintiff did not take any steps to get the suit restored. The 2nd defendant (HUDA) contended before the trial court that the suit house was allotted to the 1st defendant on hire purchase instalments basis and a lease-cum-sale agreement was executed in favour of the 1st defendant and as per the record, the instalments were paid by the 1st defendant. The 2nd defendant specifically contended that a registered sale deed will be executed only in the name of original allottee on payment of total instalments and the plaintiff has no right to seek execution of registered sale deed in her favour even though an oral agreement to sell the suit house existed between the plaintiff and the 1st defendant. Before the trial court, Pws 1 and 2 were examined and Exs:A.1 to A.30 were marked on behalf of the plaintiff. On behalf of the defendants Dw.1 was examined and Exs:B.1 to B.13 were marked. The plaintiff however adduced some evidence showing that she has been in possession of the suit house but this fact is denied by the 1st defendant. His case is that when he was transferred from Hyderabad to Machilipatnam, he entrusted the suit house to his friend Aziz Ahemed, who allowed the plaintiff to stay in the suit house and since then since then she continued in it. Therefore, any evidence showing possession of the plaintiff over the suit house is insignificant. Except the oral the evidence of Pws 1 and 2, there is no material adduced by the plaintiff about the existence of oral agreement between her and the 1st defendant. Even in respect of sale consideration of Rs. 17,000/-, which was allegedly paid by the plaintiff to the 1st defendant on the date of oral agreement to sell, there is no documentary proof. There is also no other proof regarding payment of instalments by the plaintiff to the 2nd defendant. Any payment, which was made towards instalments in respect of the suit house shall be deemed to have been made on behalf of the 1st defendant since the suit house was allotted in the name of the 1st defendant. There was no denial from the plaintiff about the existence of the clause 16 of the agreement pleaded by the 2nd defendant in his written statement, which prohibits the 1st defendant to sell the house without prior permission from HUDA. As rightly held by the trial court, the plaintiff did not take any steps to get a registered sale deed executed in her favour for a period of 14 years and that her claim for specific performance of an agreement to sell is clearly barred by limitation. The learned Counsel for the appellant relied on a decision in AIR 1996 SC 1960 wherein the Supreme Court held that unless the deed of agreement of sale stipulates the date of performance, time is not the essence of contract. The above decision has no application to the facts of the case on hand since the plaintiff failed to prove existence of oral agreement. The learned trial court recorded that in the cross-examination, Pw.2 admitted that the 1st defendant agreed to execute an agreement of sale two or three days after the oral agreement but there is no evidence adduced by the plaintiff to show that she has taken any steps to obtain either agreement of sale or a receipt for the amount paid towards part of sale consideration. Admittedly, the plaintiff did not obtain any permission from HUDA to purchase the suit house from the 1st defendant and in view of clause 16 of the agreement between defendants 1 and 2, the claim put-forth by the plaintiff in the present case is not tenable. Since there is no denial of the fact of existence of clause 16 in the agreement between the defendants 1 and 2, there is no privity of contract between the plaintiff and the 2nd defendant and therefore it is not open for the plaintiff to institute the suit seeking specific performance of agreement to sell between her and the 1st defendant. On the date of alleged oral agreement, the 1st defendant had not acquired any title to the suit house and he has no right to sell the same to the plaintiff. Therefore, the alleged oral agreement cannot be enforced. The learned 1st Appellate Court held that the plaintiff paid an amount of Rs. 48,958/- towards sale consideration of suit house and that there is privity of contract between the plaintiff and the 2nd defendant and also that the suit filed by the plaintiff is within limitation. Absolutely there is no evidence showing that the plaintiff paid an amount of Rs. 48,958/- towards sale consideration. The findings recorded by the 1st Appellate Court are perverse and they are not based on evidence on record. Therefore, the findings recorded by the 1st Appellate Court are liable to be set aside. In the result, the second appeal is allowed. The Judgement and Decree dt. 18.11.2003 in A.S.No. 276 of 2002 passed by the learned XIV Additional Chief Judge, City Civil Court, Hyderabad is set aside and the Judgement and Decree dt. 31.12.2001 in O.S.No. 2750 of 1998 passed by the V Junior Civil Judge, City Civil Court, Hyderabad dismissing the suit is confirmed. There shall be no order as to costs. ______________________________ R.KANTHA RAO, J 28.6.2011. KRB. THE HON’BLE SRI JUSTICE R. KANTHA RAO SECOND APPEAL No. 121 of 2004. JUDGEMENT DT. 28.6.2011.