Bommaka Nagabhushana Reddy Vs. W. Srinivasa Rao
EmailAppeal: Civil Appeal No. 6256 of 1995.
Petitioner: Bommaka Nagabhushana Reddy
Respondent: W. Srinivasa Rao
Apeal: Civil Appeal No. 6256 of 1995.
Judges: V.N. KHARE & S. N. VARIAVA, JJ.
Date of Judgment: Mar 28, 2001
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 100 with Specific Relief Act, 1963 – Section 16(c) – Sale agreement – In second appeal High Court setting aside the decree of courts below – Ground taken that the agreement was only a promise to transfer land. Held, that a promise to transfer land is an agreement to sell. High Court’s view held erroneous and appeal allowed. (Para 2)
JUDGEMENT:
ORDER
1. It is not disputed that the respondent executed the agreement in his own hand writing for sale of the property in favour of appellant herein on 29.1.79. It is also not disputed that on 3.5.79 the respondent wrote a letter to the appellant requesting the appellant to send travelling expenses for going to Proddatur for registering the sale deed in favour of appellant. It is admitted that the appellant in compliance with the said letter sent a money order of Rs. 60/-, but the same was not acknowledged by the defendant – respondent. On 15.10.79, the appellant sent a notice to the defendant calling upon him to execute the sale deed in pursuance of the agreement for sale dated 29.1.79. This notice was followed by another notice dated 25.10.79. However, the defendant did not send any reply. Under such circumstances the plaintiff – appellant filed a suit for specific performance for the sale of the property. The plaint allegations were that the defendant – respondent was alloted a plot in the State Government Employees Co-operative House Building Society Colony in Kotha-palli Village, that the defendant on 29.1.79 executed an agree-ment for sale in favour of the appellant that under the agreement the appellant was to pay respondent Rs. 200/- which amount was paid by the respondent to the Society and further the appellant was to pay a sum of Rs. 1000/- due to the Society, that in accor-dance with the terms of the agreement the appellant paid these amounts, and, that on payment of the said amount and after the plot is transferred in the name of the respondent, the respondent had to execute the sale deed in favour of the appellant. The defendant – respondent filed a written statement wherein he took the plea that prior to the agreement dated 29.1.79, he has en-tered into an agreement with one Venkataramaniah, who is also Government employee for sale of the said property. The trial court relying upon the agreement for sale dated 29.1.1979, de-creed the suit filed by the plaintiff – appellant. The appeal preferred against the said decree was dismissed. However, the High Court in second appeal filed by the defendant – respondent set aside the decree of the trial court and dismissed the suit.
2. Learned Counsel appearing for the appellant urged that the view taken by the High Court in dismissing the suit suffers from legal infirmity. He further argued that no substantial question of law arose in the second appeal and, therefore, the High Court was not justified in allowing the appeal preferred by the defend-ant – respondent under Section 100 of the Code of Civil Proce-dure. On the other hand, learned Counsel for the respondent has justified the view taken by the High Court. For allowing the appeal the High Court was of the view that the agreement dated 29.1.79 is not an agreement of sale, but a promise to transfer the suit site in favour of the plaintiff. This view of the High Court is totally erroneous. An agreement for sale of property and a promise to transfer a property convey the same meaning and effect in law. A promise to transfer a property is an agreement for sale of a property. The second ground on which the High Court has allowed the appeal was that the plaint allegations were contrary to the contents of the agreement for sale. We have looked into the agreement for sale as well as the allegations in the plaint extracted hereinbefore but we do not find any contra-diction between the two. We are, therefore, of the opinion that view taken by the High Court suffers from serious legal infirmi-ty.
3. For the aforesaid reasons this appeal deserves to be allowed. We, therefore, set aside the judgment under appeal. The appeal is allowed. The decree of the trial court is restored. There shall be no order as to costs.
1. It is not disputed that the respondent executed the agreement in his own hand writing for sale of the property in favour of appellant herein on 29.1.79. It is also not disputed that on 3.5.79 the respondent wrote a letter to the appellant requesting the appellant to send travelling expenses for going to Proddatur for registering the sale deed in favour of appellant. It is admitted that the appellant in compliance with the said letter sent a money order of Rs. 60/-, but the same was not acknowledged by the defendant – respondent. On 15.10.79, the appellant sent a notice to the defendant calling upon him to execute the sale deed in pursuance of the agreement for sale dated 29.1.79. This notice was followed by another notice dated 25.10.79. However, the defendant did not send any reply. Under such circumstances the plaintiff – appellant filed a suit for specific performance for the sale of the property. The plaint allegations were that the defendant – respondent was alloted a plot in the State Government Employees Co-operative House Building Society Colony in Kotha-palli Village, that the defendant on 29.1.79 executed an agree-ment for sale in favour of the appellant that under the agreement the appellant was to pay respondent Rs. 200/- which amount was paid by the respondent to the Society and further the appellant was to pay a sum of Rs. 1000/- due to the Society, that in accor-dance with the terms of the agreement the appellant paid these amounts, and, that on payment of the said amount and after the plot is transferred in the name of the respondent, the respondent had to execute the sale deed in favour of the appellant. The defendant – respondent filed a written statement wherein he took the plea that prior to the agreement dated 29.1.79, he has en-tered into an agreement with one Venkataramaniah, who is also Government employee for sale of the said property. The trial court relying upon the agreement for sale dated 29.1.1979, de-creed the suit filed by the plaintiff – appellant. The appeal preferred against the said decree was dismissed. However, the High Court in second appeal filed by the defendant – respondent set aside the decree of the trial court and dismissed the suit.
2. Learned Counsel appearing for the appellant urged that the view taken by the High Court in dismissing the suit suffers from legal infirmity. He further argued that no substantial question of law arose in the second appeal and, therefore, the High Court was not justified in allowing the appeal preferred by the defend-ant – respondent under Section 100 of the Code of Civil Proce-dure. On the other hand, learned Counsel for the respondent has justified the view taken by the High Court. For allowing the appeal the High Court was of the view that the agreement dated 29.1.79 is not an agreement of sale, but a promise to transfer the suit site in favour of the plaintiff. This view of the High Court is totally erroneous. An agreement for sale of property and a promise to transfer a property convey the same meaning and effect in law. A promise to transfer a property is an agreement for sale of a property. The second ground on which the High Court has allowed the appeal was that the plaint allegations were contrary to the contents of the agreement for sale. We have looked into the agreement for sale as well as the allegations in the plaint extracted hereinbefore but we do not find any contra-diction between the two. We are, therefore, of the opinion that view taken by the High Court suffers from serious legal infirmi-ty.
3. For the aforesaid reasons this appeal deserves to be allowed. We, therefore, set aside the judgment under appeal. The appeal is allowed. The decree of the trial court is restored. There shall be no order as to costs.
