T V KAMESWARI Vs. V R SUDHAKARA RAO

JUDGEMENT

(1.) These two Appeals arise out of a Common Judgment made in O.S.No.350/82 on the file of II Additional Subordinate Judge, Visakhapatnam and O.S.No.131/82 on the file of the same Court.

(2.) One Thangirala Venkata Avadhani filed O.S.No.131/82 for recovery of possession of the plaint schedule property after evicting the defendants and for the relief of permanent injunction and O.S.No.350/82 was filed by one Sudhakar Rao as against Thangirala Venkata Avadhani and certain others for the relief of specific performance of an oral agreement of sale relating to the plaint schedule property. The said Thangirala Venkata Avadhani died during the pendency of the said suits no doubt T.A. Kameswari, the appellant in the both the suits had been brought on record as the legal representatives of the said Venkata Avadhani. In O.S.No.131/82 the said Venkata Avadhani as plaintiff had pleaded as follows: The Staff of Andhra University formed a Co-operative Society. The said Society purchased from her Highness Janaki Ratnayammajee, CBEE, Dowager Rani Saheba of Gangapur Ac.8.80 cents forming part of T.S.No.125 (part) of Waltair Ward in Visakhapatnam Municipality. The said Society allotted a plot to the 1 st plaintiff i.e., Plot No.30 in the said layout by means of a registered sale deed dated 30-11 -1967 and delivered possession. To the South of the Plot No. 30 there is Plot No.31. The 1st plaintiff came to learn that this plot was purchased by the defendants. In the plot purchased by the defendants they constructed a building. While constructing the said building, as their plot was having road on three sides, they requested the 1st plaintiff for permission to stock their sand, stone and granite and bricks in the site of the plaintiff and as the site of the 1 st plaintiff was vacant he said no objection and in utter good faith gave the said permission. Suddenly on the evening of 10-5-1982 the 1 st plaintiff was informed that the defendants were constructing a compound wall on the East and West of the 1 st plaintiff's plot No.30. He also found that the foundations were dug and the stone was laid in the foundation both on Eastern side and Western side. On the early morning he immediately gave a report to the III Town Police Station. Along with the 1 st plaintiff a police constable came and the 1 st plaintiff found that the Eastern compound wall completed and in the Western compound wall the construction with bricks was started on the basement raised on 10th. The police informed them not be do any construction but later they began construction even in spite of the police warnings. The 1 st plaintiff never sold the site nor agreed to sell the same to anybody including the defendants. He is absolute owner of the property.

(3.) The 1st defendant filed written statement with the following allegations: The 1st defendant's correct name is I.B.V. Narasimharao and not I.Narasirhharao as mentioned in the plaint. It is submitted that this defendant's mother- in-law was one Kotagiri Srivara Manga Tayaramma. She wanted to acquire two plots at Visakhapatnam and asked this defendant to arrange the purchase of two plots at Visakhapatnam. Consequently this defendant approached the plaintiff on behalf of his mother-in-law and it was agreed that the plaintiff should sell 665 sq. yards of the property covered by Plot No.30 to Manga Tayaramma at Rs.65.00 per sq. yard for a total consideration of Rs.42,575.00. The said oral agreement of sale was entered into between the plaintiff and Smt.Manga Tayaramma, represented by this defendant as her agent in the last week of November, 1979 at the plaintiffs residence in Visakhapatnam. This defendant paid an amount of Rs.16,575/- towards part of the sale consideration to the plaintiff on behalf of the vendee, his mother- in-law in the week of November, 1979 and the plaintiff delivered possession of the schedule property to this defendant representing the vendee-his mother-in-law. The plaintiff in fact noted down on a piece of paper and calculated the total sale consideration for 665 sq. yards at Rs.65.00 per sq. yard and arrived at the figure of Rs.42,575/- He wrote the name of this defendant as 'I.Narasingarao' on the top of the said slip of paper and he also noted the sale consideration at the rate of Rs.40A per sq. yard. The plaintiff delivered the slip of paper to this defendant at that time. The 1 st defendant states that plaintiff required him to obtain a Demand Draft for Rs.26,000.00 being the balance of sale consideration payable to him and he also agreed to execute and register the necessary sale deed in favour of the vendee Smt. Manga Tayaramma within a week after the oral agreement of sale and promised to obtain the required clearance for the sale of schedule property under the provisions of the Urban Ceiling Act at the cost of the vendee i.e., Manga Tayaramma. Further, it was agreed that the Demand Draft of Rs.26,000.00 should be handed over to the plaintiff at the time of registration of the sale deed. This defendant's mother-in-law Manga Tayaramma in pursuance of the said oral agreement of sale obtained a draft for an amount of Rs.26,000.00 in favour of the plaintiff. This defendant thereupon approached the plaintiff immediately after 3- 12-1979 and had shown to him the Demand Draft and asked him if he obtained the required clearance from the Urban Ceiling Authority. The plaintiff, thereupon stated that he did not obtain the required clearance as yet and promised to execute and register the sale deed as soon as he obtained the clearance. The 1st defendant states that it is only the plaintiff that did not perform his part of the contract till now and caused breach of the terms of the contract and ultimately choose to deny the truth of the contract. On 10-12-1979, the 1st defendant, for Manga Tayaramma purchased plot No.31. He states that in fact as wall was constructed on the Eastern side for boil", the plot Nos.30 and 31 and likewise another wall on the West was constructed to both the said plot Nos.30 and 31. As both the plots originally belonged to the same owner Manga Tayaramma, no wall was constructed in between the two plots. Further the wooden material for the proposed building was stocked in the site of Sri Gangapur Rani, which is situated to the South of Plot No.31. It is false to state that the defendants requested the plaintiff for permission to stock their sand and stone in the plaint schedule site. Plaintiff is not entitled either for delivery of possession or for a permanent or mandatory injunctions.