HON’BLE SRI JUSTICE A. GOPAL REDDY S.A.No. 1412 OF 2011 DATE:25-11-2011 BETWEEN Borra Sambasiva Rao …Appellant AND Nemani Samarajyam and another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY S.A.No. 1412 OF 2011 JUDGMENT: Unsuccessful plaintiﬀ before the Courts below ﬁled this second appeal against the judgment and decree of VII Additional District and Sessions Judge (Fast Track Court) at Vijayawada made in A.S.No.65 of 2008 dated 12.9.2011 whereby the appeal ﬁled by the plaintiﬀ was dismissed conﬁrming the judgment and decree of II Additional Junior Civil Judge, Vijayawada dated 7.3.2008 dismissing the suit in O.S.No.1080 of 2005 ﬁled for speciﬁc performance of agreement of sale. For the sake of convenience, the parties herein will be referred to as per their array before the trial Court. Plaintiﬀ instituted the above suit seeking speciﬁc performance of agreement of sale dated 24.10.2009 by directing the defendants to execute a registered sale deed in regard to the plaint schedule property. According to him, the husband of ﬁrst defendant was a member of second defendant R&B Division Cooperative Building Society, Vijayawada and the said society acquired Ac.9.88 cents in R.S.No.4/3B, situated at Ajitsingh Nagar, Vijayawada through V.G.T.M. Urban Development Authority, Vijayawada with the object to allot house plots to its members. The husband of ﬁrst defendant was not in a position to purchase the plot that may be allotted to him since he was unable to pay even the advance amount and as such he agreed to sell the plot that may be allotted to him by second defendant for a sum of Rs.35,000/- to the plaintiﬀ and accordingly he executed suit agreement of sale on 20.10.1994 by receiving Rs.20,000/- as advance money for the purpose of payments of site advance to second defendant-Society. The husband of ﬁrst defendant during his life time did not choose to inform the plaintiﬀ about registration of plot by the second defendant in his favour and postponed his part of contract and thereafter he died. On the death of her husband, the ﬁrst defendant did not cooperate with the plaintiﬀ despite notice issued by him on 11.5.2005 demanding her to execute the registered sale deed and therefore, he laid the present suit. Contesting the suit, ﬁrst defendant ﬁled a written statement denying the plaint material averments and contended that as per the bye laws of the second defendant-Society, only members are entitled for allotment of house-plots and no third person is entitled for allotment and that her husband paid instalment amounts till his death and no plot was allotted to her husband during his life time and the alleged agreement is a contract for uncertain event and therefore, the same is void and unenforceable. Second defendant- Society remained ex parte. On the above pleadings, the trial Court framed necessary issues for trial. The parties went into trial and the plaintiﬀ himself examined as P.W.1 and the attestor and the scribe of agreement were examined as P.Ws.2 and 3. Exs.A.1 to A.7 were marked on his behalf. Whereas, on behalf of defendants, ﬁrst defendant herself examined as D.W.1, but no documentary evidence was adduced. While appreciating the evidence, the trial Court observed that plaintiﬀ as P.W.1 admitted that by the date of entering into agreement of sale-Ex.A.1, plots of the society were not divided and there was also no mention in Ex.A.1 as to which part of plot would be allotted to husband of ﬁrst defendant. There is no documentary evidence to show that second defendant-Society is proposing to allot plot to husband of the ﬁrst defendant. There is no privity of contract between the plaintiﬀ and the ﬁrst defendant. The recitals of Ex.A.1 reveals that it is entered with regard to the plot that is going to be allotted in favour of husband of ﬁrst defendant and that it does not contain schedule and description of the property and therefore, even if Ex.A.1 agreement of sale is taken to be valid, still it cannot be enforceable as per law. Holding to, the trial Court dismissed the suit of the plaintiff. On appeal being ﬁled by the plaintiﬀ, the lower appellate Court dismissed the appeal conﬁrming the findings of the trial Court. Heard the learned counsel for the appellant and perused the material available on record. Learned counsel appearing for the appellant-plaintiﬀ contends that in view of provisions of Section 13 of the Speciﬁc Relief Act, the right of the purchaser is protected and whenever the vendor acquires title to the property, then the plaintiﬀ is entitled to enforce the sale under the agreement entered by him. It is contended that it 2005 itself the second defendant-Society allotted the plot to the ﬁrst defendant as her husband was member of the society and therefore, the Courts below are not justified in dismissing the suit. Admittedly, the appellant is claiming right against second defendant-Society to enforce the agreement of sale through husband of ﬁrst defendant. Under Section 61 of Cooperative Societies Act, any such dispute/right with regard to the property allotted by the Society to its member can be resolved/enforced by way of arbitration and the jurisdiction of the Civil Court is barred. Further the appellant failed to establish about acquiring of any property by husband of ﬁrst defendant as on the date when he entered into suit agreement and failed to establish that the second defendant-Society made certain property into plots and allotted one such plot to the husband of ﬁrst defendant. Having failed to establish the same, the appellant cannot enforce the suit agreement. The concurrent ﬁndings recorded by both the Courts below are based on appreciation of the entire evidence in proper perspective, which does not give rise to any substantial question of law to admit the second appeal. The second appeal fails and the same is accordingly dismissed at the threshold. No order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 25, 2011 Tsr.