IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No. 51 OF 2003 BETWEEN: G.Viswanadharaju …APPELLANT AND A.Venkata Narayanamma and another …RESPONDENTS CITY CIVIL COURT APPEAL No. 68 OF 2003 BETWEEN: M/s Vijayasree Builders, represented by its Managing Partner …APPELLANT AND A.Venkata Narayanamma and another …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CITY CIVIL COURT APPEAL Nos. 51 AND 68 OF 2003 COMMON JUDGMENT: Both the appeals arise out of a common Judgment in O.S.No. 1315 of 1994 and 1510 of 1997 on the file V Senior Civil Judge, City Civil Court, Hyderabad. C.C.C.A.No.51 of 2003 was filed against the judgment in O.S.No.1510 of 1997 and C.C.C.A.No.68 of 2003 was filed against judgment in O.S.No.1315 of 1994. 2. The allegations in the plaint go to show that originally, the plaintiff is owner of the house bearing No.334/L2 situated at Sanjeevareddy Nagar Colony, Hyderabad, and it was said to have been given on a development agreement to the defendant and the General Power of Attorney (for short, “GPA”) was given on 21.02.1992 for construction and sale of the flats and other required acts. Accordingly, as per the terms of the development agreement, the defendant agreed to pay Rs.2,50,000/- in cash and allotted a flat with a minimum of 500 square feet carpet area, worth of Rs.2,00,000/-. On the date of agreement, a sum of Rs.50,000/- was paid and the balance has to be paid on or before May, 1993. The flat also has to be delivered by that date, but some how on 24-04-1994 only the flat could be delivered. The defendant has not paid the money in spite of the demands and hence the suit, which was filed in the month of October, 1994. 3. The defendant filed a written statement, admitting the GPA, dated 21-02-1992. The other allegations were denied. The filing of the suit for recovery of the amount is baseless. The defendant claims that he will file a detailed additional written statement subsequently. 4. 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 suit amount with interest and costs of the suit as prayed for? 2) To what relief? 5. Subsequently, the plaintiff also filed a suit O.S.No.1510 of 1997 for a direction to the defendant to register the single bed room flat as per the memorandum of understanding, dated 19-02-1992 and development agreement and GPA, dated 21-02-1992. The plaintiff while repeating the allegations in the earlier suit, claimed that she executed a development agreement in favour of the defendant inconformity with the memorandum of understanding, dated 19-02- 1992 and GPA dated 21.02.1992 and the said copy was taken away by the defendant from the husband of the plaintiff. As the defendant has not performed the contract and paid the money, the suit O.S.No.1315 of 1994 was filed. It was also further pleaded that the plans were got approved by the plaintiff and defendant has utilised the property and constructed the apartments and sold to several individuals. Hence the suit. 6. The defendant filed a written statement admitting the ownership of the property by the plaintiff. It was pleaded that the alleged understanding or development agreement is not correct and the plaintiff sold the property and gave GPA on 21-02-1992. The defendant has sold all the properties and the plaintiff is bound to vacate the flat in the ground floor, which is in her possession. The General Power of Attorney, dated 21-02-1992 was admitted. There are no violation of any terms of the contract. It was further pleaded that the plaintiff has to pay some amount to the Housing Board, and at the time of oral agreement, the plaintiff received a sum of Rs.80,000/- on 05-08-1991 including the amount paid to Housing Board. Subsequently, the defendant made the following payments: Rs. 10,000-00 on 16-09-1991 Rs.1,10,000-00 on 26-01-1992 Rs. 50,000-00 on 20-02-1992 Rs.1,50,000-00 on 21-02-1992 on the date of G.P.A. Total Rs. 4,00,000-00 All the original receipts are with the Police. The suit is barred under principles of Order.II, Rule.2 of the Civil Procedure Code (for short, “the Code”). 7. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the defendant committed breach of the contract entered into between the parties? 2) Whether the defendant is liable to register single bed-room flat in favour of plaintiff as per the agreement? 3) Whether the suit barred by Order.II, Rule.2 CPC? 4) To what relief? 8. Both the suits were tried together. On behalf of the plaintiff, PW- 1, who is the son-in-law and General Power of Attorney Holder of the plaintiff, was examined and marked Exs.A.1 to A.9. On behalf of the defendant, DW.1 was examined and no documents are marked. 9. After considering the evidence on record, the learned V Senior Civil Judge, City Civil Court, Hyderabad, decreed both the suits. Aggrieved by the said judgment and decree, the present appeals are filed. 10. The points that arise for consideration are: 1) Whether the defendant has purchased the schedule property as claimed and there was no development agreement as pleaded by the defendant? 2) Whether the defendant has paid a sum of Rs.4,00,000/- and the claim of the plaintiff for recovery of Rs.2,68,500/- is not maintainable? 3) Whether the 2nd suit O.S.No.1510 of 1997 is barred under the principles of Order.II, Rule.2 of the Code? 11. POINTS: There is no dispute about the fact that the plaintiff is the owner of the property and the defendant has undertaken to construct some flats in the site. The dispute between the parties is as to whether the plaintiff has sold the property out right for a consideration of Rs.4,00,000/- or whether the plea of the plaintiff that the property was given on development agreement on a promise of payment of Rs.2,50,000/- and allotment of the flat is true. Before appreciating the rival contentions on both sides, it is useful to refer to certain practices, whenever property was taken for development if it is a case of out and out sale, generally, it is for the defendant to prove that the title has passed and valid title can be passed only by virtue of a registered sale deed. 12. Evidently, there is no sale deed in favour of the defendant conveying the absolute title to the property. The GPA, which is marked as Ex.A-3 also does not show that the defendant has paid consideration of Rs.4,00,000/- or agreed to pay any consideration. According to the case of the defendant, consideration was paid in different instalments and receipts were also issued. The receipts were said to be with the police. The defendant has not filed any single document to prove the payment of the said amount. If the defendant is to deal the property as owner of the property, then the plans and the sale deeds executed by him should reflect. But the defendant has not filed any such document. In fact, in the first suit filed by the plaintiff in the year, 1994 in the written statement, the defendant has not taken the plea that the property was sold out right for a sum of Rs.4,00,000/- and the consideration was paid. Except vague denial of the liability, no material is pleaded in that suit. Therefore, as rightly contended by the counsel for the plaintiff, the subsequent plea developed in the 2nd suit cannot be given much credence without proof of the factum of sale. 13. The plaintiff in order to prove her case, wants to rely upon Ex.A- 9, which is said to be a memorandum of understanding, dated 19-02- 1992 and it is only a Xerox copy. Evidently, whenever a property was given for development agreement, the practice of entering into a memorandum of understanding accompanied by the GPA is an admitted fact. If there is no liability for any further accountability to the plaintiff, there is no reason as to why GPA should be taken instead of a regular sale deed. Therefore, in the absence of evidence on the side of the defendant to prove the sale and asserting of title to the property and also the failure to prove the payment of Rs.4,00,000/-, the trial Court has justified in accepting the case of the plaintiff, which is also to be probablised by Ex.A-9. The conduct of the defendant in not pleading the sale in the first suit O.S.No.1315 of 1994 is a strong circumstance against the defendant. 14. The learned counsel for the appellant strongly contends that the plaintiff has not gone into box and PW-1 is only a GPA holder and he cannot prove the facts in issue and as such, the claim of the plaintiff cannot be believed. He relied on a decision reported in Naseem Noorullah Vs. Abdul Salam[1]. In fact, in this case, burden is mostly on the defendant to prove the allegations and it has been found that the plea taken by the defendant is not true and not proved and therefore, the absence of the evidence of plaintiff is not a factor to dismiss the suit. 15. The learned counsel for the appellant also contended that on the principles of Order.II, Rule.2 of the Code, the suit is barred. According to him, the claim of the plaintiff for recovery of Rs.2,68,500/- by the date the suit O.S.No.1315 of 1994 was filed, the 2nd suit for specific performance remedy should have been also availed and since the cause of action is the same, the 2nd suit is barred by time. In this connection, he relied on the following decisions: 1) Bijivemula Venkata Subba Reddy Vs. Jangam Satya Babu and others[2]. 2) Gajanan R.Salvi, Vs. Satish Shanakr Gupte and others[3]. 3) Alka Gupta Vs. Narender Kumar Gupta[4]. 16. I do not find the contentions raised by the counsel for the appellant has got any validity. According to the case of the plaintiff, the payment of the consideration and delivery of possession of the completed flats are two different causes of action. They may be a part of the same agreement, but unless and until the structure was completed and ready for occupation, there will not be any right of the plaintiff to sue for specific performance. According to the written statement of the defendant, the flats were sold from 1992 to 1994. The flats under occupation of the plaintiff is said to be illegal according to the plaintiff. A reading of Ex.A-9 does not show that the payment of Rs.2,50,000/- and also the delivery of the property shall be simultaneous. However, 18 months time was fixed for the purpose of the contract. Therefore, under the agreement, the rights are quite different and distinct. The amount has to be paid and flat to be delivered only after construction. In fact, the defendant has not made any plea as to when flat was delivered and according to the plaintiff, the possession was delivered on 24-04-1994. 17. Therefore, from the facts and circumstances of the case, it cannot be said that the cause of action for filing of the suits is the same, the rights sought to be enforced are quite different and distinct and the cause of action for recovery of the money arises when the amount was not paid. The cause of action for the registration of the sale deed arises when the property was delivered and it was not registered. Therefore, in view of the above circumstances, the contentions raised by the appellant have no force and the development agreement of the memorandum of understanding is only a document creating different rights, but the cause of action for enforcement of the rights in the two suits are quite different. Therefore, the lower Court has rightly rejected the claim of the appellants and I do not find any valid reasons to interfere with the judgment and decree passed by the lower court. Therefore, both appeals deserve to be dismissed. Accordingly, points are answered. 18. In the result, both the appeals are dismissed with costs. ________________________ N.R.L.NAGESWARA RAO, J Date: 15-03-2011. INL [1] 2002(3) ALD 326 [2] 2009(2) ALT 689 [3] AIR 2004 BOMBAY 455 [4] (2010) 10 Supreme Court Cases 141