THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.No.3776 of 2000 Dated 2nd September 2009 R.Rajender Yadav S/o late Pandurangam And others …appellant And M.Venkatram Reddy s/o Sri M.Galreddy And another. ….Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE G.BHAVANI PRASAD A.S.No.3776 of 2000 ORDER: (Per the Hon’ble Sri Justice B.Prakash Rao) The appellant is the deceased defendant, whose legal representatives have been brought on record in view of his death during the pendency of this appeal, as per the orders in ASMP.2754/2006 dated 5-1- 2007. The appeal is under Section 96 of the Code of Civil Procedure aggrieved against the judgment and decree in O.S.No.77/1998 dated 10-8- 2000, on the file of II Additional District Judge, Ranga Reddy decreeing the suit filed by the respondents 1 and 2, the plaintiffs seeking for specific performance of an agreement in respect of suit schedule property. Heard Sri Kowturu Pawan Kumar, the learned counsel appearing for the appellant and Sri M.Narender Reddy, the learned counsel appearing for the contesting respondents, the plaintiffs. Briefly, the facts which gave rise to the filing of this appeal as stated in the plaint are that in respect of the suit schedule property consisting of Plot No.1 along with building and Plot No.27 admeasuring 713.85 sq yards and 298 sq yards, respectively, total admeasuring 1011.85 sq yards in Sy.No.9 situated at Old Bowenpally, adjacent to Rajarajeshwari Colony, Behind H.A.L Colony, Bowenpally, Balanagar Revenue Mandal, Rangareddy district, in response to the offer made by the defendants for sale of the same, the plaintiffs came forward for purchase. After negotiations on 10-4-1998, the defendants agreed to sell the same for a total consideration of Rs.12,00,000/- and out of the total consideration, a sum of Rs.36,000/- was paid by the plaintiffss and the balance to be paid within a period of two months thereafter. The said payment was evidenced by the receipt executed by the defendants of the even date. It was further agreed that soon after receipt of the balance consideration of Rs.11,64,000/- , the sale deed would be executed and registered. Accordingly, the plaintiffss to construct a compound wall on Southern side and the plaintiffs constructed the compound wall by spending a sum of Rs.25,000/-. The defendants handed over certain documents in pursuance of the said contract viz., sale deed dated 11-5-1967 (Doc.N.884/1967), the property tax receipts dated 1-7-1991, 1-1-1993 and 15-7-1993, copy of the two affidavits dated 9-8-1989 of R.Narender, brother of the defendant and Smt R.Padmamma, the mother of the defendants, respectively, and the affidavit of the defendant dated 5-11-1993, lay out plan for Sy.No.9 and General Power of attorney dated 8-8-1989 vide Doc.No.232/1989. A public notice was published in Eenadu daily newspaper dated 14-4-1998 calling for objections and the plaintiffs obtained the non-encumbrance certificate for the period commencing from 1-4-1982. However, even though the plaintiffs have approached the defendant for the due execution of the sale deed after receiving the balance consideration, the defendant refused to comply the same. Hence, the plaintiffs issued a legal notice on 2-6-1998, yet the defendant did not accede. It was stated that the plaintiffs are willing to perform their part of contract and pay balance of consideration of Rs.11,64,000/- at any point of time. Hence, the suit. Contesting the suit claim, the appellants in their written statements denied the entire allegations and even about the agreement. There was no such agreement nor any terms have been agreed to. No possession was delivered, and therefore, the question of construction of the compound wall by the plaintiffs does not arise. The delivery of the documents mentioned is false. The plaintiffs are only trying to grab the suit property with such false claim and there is no agreement nor any breach threof by the defendants. The plaintiffs are not ready in regard to the balance of consideration and the suit is false, vexatious and is not entitled to any relief. On these and other allegations the Court below framed the following issues: 1. Whether the plaintiffs is entitled for a decree of specific performance as prayed for? 2. Whether there is no contract between the parties? 3. Whether there is no cause of action for filing the suit? 4. To what relief? During the course of the trial, on behalf of the plaintiffs, plaintiff No.2 as PW.1 and one Mr.M.Narender as PW.2 were examined and Exs.A.1 to A.9 were marked. In rebuttal, the defendant examined himself as DW.1 and another witness DW.2 and marked Exs.B.1 to B.4. On a consideration of the evidence and material on record, the Court below holding that the receipt in Ex.A.1 amply discloses the sale consideration and execution of property and holds that apart from the evidence of PWs.1 and 2 there exists an oral contract. The plea which is sought to be raised at later that the suit property is a joint property and belong to himself and Joshna Bai having not being pleaded nor there being any evidence, rejected the entire defense, holding that the defendant has failed to establish the property as the joint family property. Thus, answering all the issues in favour of the plaintiffs, the suit has been decreed with costs directing the defendant to execute sale deed within a period of three months after receipt of entire sale consideration. Hence, the appeal. The learned counsel appearing for the appellants submitted that there is no agreement and the oral agreement as pleaded is not established nor there is any agreement as such in regard to the vital terms especially the time of execution, payment of balance of consideration and there is no proper identity or details of the property with boundaries etc., and therefore there is heavy burden on the plaintiffs which has remained un-discharged, and even otherwise the four ingredients necessary for a document viz., particulars of consideration, certainty as to party, certainty as to property to the suit and certainty as to the terms relating to probable cost and time etc., not being there nor any evidence in support, the plaintiffs are not entitled to the relief of specific performance. The learned counsel appearing on behalf of the respondents/plaintiffs repelling the aforesaid contentions submitted that having regard to the documents and the oral evidence, which has been produced on behalf of the plaintiffs, which has virtually remained un- rebutted, and there being no contra evidence, it amply establishes the oral agreement with all the necessary details and therefore the said plea is wholly unsustainable, and the court below has rightly decreed the suit by giving due reasons and hence does not warrant any interference. Considering all these aspects and the submissions made from both sides apart from perusal of the entire material, the point, which arises for consideration, is as to whether on the facts and circumstances the plaintiffs have made out any case to seek enforcement of the oral agreement? Coming to the material on record and the relief as set forth in the suit for specific performance of an oral agreement in respect of schedule property, as already stated above in the inception the property has been fully described in the plaint schedule and even the boundaries are also mentioned showing as on North: Plot No.26, on South: H.A.L Colony, East: Neighbours Plot and West: Road. The plaint allegations have been reiterated by PW.1 who is the plaintiff No.2. He has given all the chequered events and marked Exs.A.1, a receipt dated 10-4-1998 evidencing the payment of Rs.34,000/-. Except the formal denial there is no specific allegation of any manipulation of or an genuineness whatsoever nature. The said receipt is comprehensive enough and shows receipt of Rs.36,000/- towards part of sale consideration out of total consideration of Rs.12,0000/- for the sale of Plot No.1 along with building and Plot No.27 admeasuring 713.85 sq yards and 298 sq yards, respectively, total admeasuring 1011.85 sq yards in Sy.No.9 situated at Old Bowenpally, adjacent to Rajarajeshwari Colony, Behind H.A.L Colony, Bowenpally, Rangareddy district from Venkat Ram Reddy son of M.Ram Reddy resident of Habsiguda, Hyderabad and Sri K.Jagadeshwar Reddy, son of Deva Mallaiah, resident of 1-2-215/1/A, Domalguda, Hyderabad. On a bare reading itself the receipt takes in almost every part of the details of the property and the total consideration apart from the receipt of the part consideration. The contents of the said Ex.A.1 reads as follows: “Dated: 10-4.1998 RECEIPT I, R.Rajender Yadav, s/o. Late pandurangam, aged about years, r/o. H.No.5-26, adjacent to Rajarajeshwari Colony, Old Bowenpally, R.R.District this day received a sum of Rs.36,000/- (Rupees thirty six thousand only) towards part sale consideration out of total sale consideration of Rs.12,00,000/- (Rupees twelve lakhs only) for sale of the Plots bearing No.1 along with old Building and Plot No.27, admeasuring 713.85 & 298 Sq.yards respectively in Survey No.9, Old Bowenpally, adjacent to Rajarajeshwari Colony, behind HAL Colony, R.R.District from Sri.M.Venkatram Reddy, S/o. M.Gal Reddy, r/o. Habsiguda, Hyderabad and Sri K.jagadeshwar Reddy, S/o. Deva Mallaiah, R/o. 1-2-215/1/A, Domalguda, Hyderabad. Sd/- (R.RAJENDRA YADAV) Witnesses: 1. (K.Janardhan Reddy) 2. (M.Narender)” According to the plaintiffs, as stated to by PW.1 and PW.2 the balance consideration has to be paid and the document has to be executed. There is no dispute in regard to the publication made by the plaintiffs in the local newspaper on 14-4-1998, which is marked as Ex.A.2 and there is no dispute to the fact that the plaintiffs have filed encumbrance certificates Exs.A.3 to A.6 and later the plaintiffs got issued a legal notice, the office copy of which is marked as Ex.A.7 and acknowledgment thereof as Ex.A.8. The evidence of PWs.1 and 2 is quite consistent about the terms as mentioned therein and also in regard to the construction of the compound wall etc. On a reading of their depositions, the entire version as spoken to has remained unshaken and nothing has been made out in their cross- examination to warrant any doubts on their statements. PW.2 is an attestor to the said receipt in Ex.A.1. As rightly pointed out by the Court below that on a detailed consideration of the entire evidence of these three witnesses it can safely be held that their oral version and the contents from Ex.A.1 amply go in support of its due execution and an the agreement. In rebuttal, DW.1 reiterates his denials, but however there is no dispute in regard to the properties as specified and shown in Ex.A.1. It is not specifically culled out on behalf of the defendants that there could have been any other version in regard to Ex.A.1 and there is no explanation in regard to the compound wall, which has been constructed on the Southern side nor there is any evidence from their side to support that the same was constructed by themselves. Further, the defendants sought to develop a plea to the effect that the property is a joint family property and further belongs to himself and Joshna Bai. However, there is no serious attempt on their part to establish either way apart from the fact that such a plea is a belated plea without proper foundation and it remained unsubstantiated. Coming to aspect of denial as to the plaintiffs not being ready and willing, it is seen from the record that on the application filed by the defendants themselves in I.A.1032/1998 where they sought the plaintiffs to deposit entire remaining balance consideration, the plaintiffs have given bank guarantee for the entire said amount, and therefore, there cannot be any doubt as to such ready and willingness. In view of the same, it follows that the defendants have utterly failed to make out any case to dispel the oral formation and the terms as mentioned in respect of the suit schedule property. Hence, the plea that all the vital terms are absent as such and no agreement has been made out cannot be sustained, more so, in view of the fact that agreement itself as per the plaintiffs is oral and Ex.A.1 which is nothing but a receipt for part of consideration and itself cannot be termed as an agreement. It is sufficient enough evidence which goes in support of the establishment of the factum of agreement. Necessarily, it follows that all other terms has to be only outside any content of Ex.A.1 and as per the plaintiffs all such terms have been agreed to orally. As regards the other specific plea that the particulars of consideration is absent, gets disbelieved by the Ex.A.1 itself doubts on certainty as to party get lost by Ex.A.1. Certainty as to property be sold is once again falls to the ground even from the very descriptive contents in Ex.A.1. Certainity as to other terms relating to cost, time etc., the cost is already evident from Ex.A.1 and time etc., can only be reasonably spelled out from oral terms as agreed to. In view of the same, the plea to be raised on behalf of the appellants about the absence of basic ingredients of an agreement cannot be accepted. Hence, we hold that the plaintiffs have established the factum of agreement as an oral one and as rightly held by the Court below they are entitled to the decree of specific performance. We do not find any reason to come to different conclusion on the findings of the Court below. For the aforesaid reasons, we are of the view that there are no merits in the above appeal and the appeal is accordingly dismissed with costs. _______________ B.PRAKASH RAO,J ______​____________ G.BHAVANI PRASAD,J DATE:2-9-2009 grk