MOHD ABDUL RAZAK Vs. B VENKATESH ALIAS VENKTAIAH

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S.189/98 on the file of the learned II Additional District Judge, R.R.District, filed this appeal against the decree and judgment dated 28-2-2003 dismissing the suit filed for specific performance of an oral agreement of sale.

(2.) The parties are described as arrayed in the suit for felicity expression.

(3.) It is the case of the plaintiff that the defendant had entered into an oral agreement of sale with him for sale of Ac.0.12 guntas of site viz., 1452 sq.yards in Sy.No.17/AA situated at Soug-Bowli village, Rajendernagar Mandal, R.R.District on 26-4-1997 for a consideration of Rs.11,00,000/-, approximately at the rate of Rs.757-50 ps per sq.yard. He paid Rs. 1,100/- as token advance amount for which the defendant gave receipt under Ex.A-1. Again on 30-4-1997 he paid Rs.10,000/- to the defendant under Ex.A-2 receipt. The defendant agreed that on receiving balance of sale consideration before Sub Registrar at the time of registration, he would execute a registered sale deed. In the month of May, 1997 when they went to the suit land forpurpose of measuring the land, the defendant informed thatthere was a boundary dispute on the western side. On that he got a notice published in Deccan Chronicle under Ex.A-5 and Eenadu under Ex. A-6, calling for objections if any from the public for purchasing of the land. He got a reply published in Deccan Chronicle on behalf of Ashok Vihar Cooperative House Building Society, Hyderabad (for short 'the Society') claiming that the society had purchased the said land from Sri S.Mallaiah and another under registered sale deed dated 30-3-1990. Yet another notice got issued on behalf of Sudhakar Reddy under Ex. A-7 claiming right in respect of the land in Sy.No.17/A and 17/AA. When questioned, the defendant informed that he would settle the dispute with the society and asked him to wait and that he would also obtain income tax clearance certificate required forthe registration of sale deed. He has always been ready and willing to pay the balance sale consideration and when the defendant was postponing on one pretext or the other, he got issued a registered notice under Ex.A-8 dated 19-11-1998, calling upon the defendant to execute registered sale deed at least for the undisputed extent of 1052 sq.yards by receiving the proportionate consideration before Sub-Registrar, and that hecould execute another sale deed in respect of the remaining disputed extent of 400 sq.yards upon settlement of the dispute with the society. The defendant, having received it under Ex.A-9 acknowledgment, issued a reply notice under Ex. A-10 dated 24-11 -1998, requesting forthe supply of the documents, referred to in Ex.A-9 as he was not aware of the receipts under Exs.A-1 and A-2, which were said to have been issued by him. He gave reply under Ex.A-13. The defendant pleaded that as the balance of sale consideration was not paid within 15 days from the date of oral agreement of sale dated 26-4-1997, he had cancelled the said agreement of sale and also forfeited the advance amount. On that he filed the suit for specific performance of oral agreement of sale or in the alternative for recovery of advance amount paid underthe agreement of sale.