1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 99 OF 2000. Shri Nicolau das Chagas de Cristo Pereira, son of Arthur Pereira, aged 58 years, married, resident of House No. 1409, Benaulim, Salcete, Goa. (Registered Address). ... Appellant. Vs. 1. Shri Felix Pereira, aged 60 years, son of Salvadora Pereira, married, Carpenter, and his wife, 2. Smt. Valentina Blazia Antao, aged 47 years, housewife, daughter of Caetano Antao, Both residents of House No. 440/1, Grande Pulwado, Benaulim, Salcete, Goa. (Registered Addresses). (a) Mr. Venecio Pereira, r/o St. Georges Cycle, 1, Water Street, St. Georges, Bermuda. (b) Mr. Salvador Antonio Jose Pereira, (c) Mr. James Pereira; 2 (d) Mr. Braulio Pereira, (e) Mr. Ciera Pereira; (f) Mr. Sevia Pereira, All r/o H.No. 440/1, Grande Pulwado, Benaulim, Salcete, Goa. ...Respondents. Mr. M. S. Sonak , Advocate for Appellants. Mr. N. N. Sardessai, Advocate for Respondents. Coram: A. H. Joshi, J. Dated: 17/8/2009 J U D G M E N T This is an appeal by unsuccessful plaintiff. 2. Plaintiff's suit is for decree for specific performance and for damages. The prayer reads as follows: “Directing the defendants to execute and register proper conveyance in respect of the plot of land admeasuring 576.25 sq. meters and more particularly identified and shown in the plan of Agreement of Exchange dated 8.1.1997 and deliver vacant possession thereof to the plaintiff; or Directing the defendants to pay to the plaintiff an amount of Rs. 1.5 lakhs (rupees one lakh fifty thousand only) with interest 3 in case this Hon'ble Court deems it fit to grant such relief in substitution of the Specific Performance. 3. Foundation of claim is a written agreement of sale/or exchange of said suit plot, and consideration is some act by plaintiff. Though agreement is long and elaborate substance can be drawn as follows:- (a) Plaintiff shall at his own cost lay and make a 6 meter wide road between plot No. 4 & 5 in plaintiff's plan in survey No. 65/10 so that it lets an access to plots as may be laid by defendant in his layout plan in survey No. 65/7. (b) In consideration of laying of this road, defendant shall give to plaintiff by way of absolute sale the suit plot. 4. According to plaintiff he has performed his part of promise, and the consideration towards defendant's promise has passed on to the defendant, however, the defendant has failed to convey the suit plot. 5. The defendants contested the suit, admitting 4 the signature on the agreement, but denying the obligation. Substance of defendants' plea in defence can be summarised as follows:- a) Plaintiff has constructed road to develop his layout plan and not for the defendant. b) Plaintiff had misrepresented the defendant at the time of execution of agreement subject matter. 6. The plaintiff has examined himself and two witnesses. 7. What has come in evidence as to facts proved and facts not proved is summarised below:- a) Originally sanctioned layout for survey No. 65/10 was provisional. b) Between plot Nos. 4 & 5, any road was not left, but a small a meter wide access/entry was left for plot No. 5. c) It is seen that the final approval of revised/final plan is dated 9.4.1997. d) In the final approval of layout of survey No. 65/10 which is at exhibit PW1/E in which a 6 meter wide road has been shown. e) It has not been proved that the 5 plaintiff had applied for final approval after 8.1.1997 i.e. after the date of agreement with the defendant. 8. P.w.1 has admitted in his evidence that:- “I cannot make the plots 4, 5, 6 if the access does not go beyond pint point 'X' witness volunteers that he can make and he has shown that on provisional N.O.C. on exhibit P.W.1/D.” 9. P.w.1 has deposed in his evidence as to cost of plot and cost of construction as follows:- “The value of the land is Rs. 1,100/- per sq. meter used for the road, the construction cost of the road is Rs. 210 per sq. meter. I have not produced any bills to support the said estimate. As per the plan, I have developed my property.” However, P.W.1 has also admitted in his evidence that he does not know the exact amount of expenditure incurred by plaintiff towards raising of the said road. 10. P.W.3 on the other hand states that he made 6 the road 450 sq. meters but does not state that it is exactly the same road laid over plot No. 4 and 5. This witness only proves that the cost of construction of road is Rs. 45,000/-. 11. P.W.2 has deposed that in the absence of the road which was laid over plot No. 4 and 5, these plots could not have been used. 12. In the back ground of the allegations of representation, and the defence in the written statement, the plaintiff should have brought on record in his oral evidence as to the details of the earlier layout being provisional and that he was not required to make a road upto end of survey no. 65/7, but for promise by the defendant. 13. This witness has further admitted that he has already sold plot No. 5 and 6. 14. The date of sale of plot No. 4 and 5 has not 7 come on record, however it is obvious that had those been sold before making 6 meter wide road, plaintiff could not have laid said road. 15. Thus, the plots Nos. 5 and 6 were sold only after the road was laid. 16. It is seen that, in his oral evidence, plaintiff has failed to prove the exact area of plot No. 4 and plot No. 5 which has merged into the 6 meters road laid over these two plots which divides these two plots. 17. The conclusion arrived by learned trial judge are :- 1. That the construction of road was for the benefit of the plaintiff. 2. Conditions of Town & Country Planning Department that all internal roads shall be treated as public road. 3. Consideration for purchasing the plot by using amount spent by him on the internal road as a consideration thereof is improper. 8 18. The conclusions arrived at by trial court which are just and proper and are not contrary to law. 19. Moreover, the suit is for specific performance. The discretion as to granting the decree for specific performance did undoubtedly rest and vest with the trial court. 20. The view taken by the trial court on the basis of records is one amongst possible and permissible views, and hence it ought not to be interfered. Moreover, it is not shown that exercise of discretion by trial court is otherwise erroneous. 9 21. In the result, appeal is dismissed with costs. A.H. JOSHI, J. MF/-