JUDGMENT On 13.8.1998 this Court made the following order: "In view of the substantial question of law raised in ground No.4, the Second Appeal is admitted". The substantial questions of law specified above are as hereunder: (i) Whether the lower appellate Court is right and justified in reversing the well considered judgment of the trial Court based on the substantial evidence as held by the Supreme Court in Surain Singh vs. Mehenga reported in (1996) 2 SCC 624 ? (ii) Whether the lower appellate Court is right and correct in reverse the judgment of the trial Court on the ground that relying on the evidence of defendants the suit cannot be decreed? 2. Sri A.V.Sivaiah, learned counsel representing the appellants would maintain that this is a suit for specific performance on the strength of an oral agreement of sale and the said oral agreement of sale had been clearly proved by the voluminous oral and documentary evidence available on record apart from certain admissions made by DWs.1 to 5 as well. The learned counsel also had taken this Court through the findings recorded by the Court of first instance and also the findings recorded by the appellate Court and would maintain that the reasons recorded by the appellate Court are totally unsustainable in the facts and circumstances of the case. The learned counsel strongly relied upon several of the admissions made by D.Ws., in relation to possession of properties in question and further placed strong reliance on the evidence of PWs.4 and 5 apart from the other oral and documentary evidence available on record and would maintain that in the light of the clear evidence available on record relating to oral agreement of sale, the suit was decreed as against 1st defendant only and the 1st defendant was directed to execute a registered sale deed in favour of plaintiffs and in the peculiar facts of the case, the suit against 2nd defendant was dismissed. The learned counsel also would submit that when the evidence available on record is clear and categorical, refusing the relief of specific performance in relation to the plaint schedule properties as against 1st defendant cannot be sustained. The counsel also relied on certain decisions to substantiate his submissions. 3. The learned counsel also would submit that when the evidence available on record is clear and categorical, refusing the relief of specific performance in relation to the plaint schedule properties as against 1st defendant cannot be sustained. The counsel also relied on certain decisions to substantiate his submissions. 3. Per contra, Sri Uday Kumar representing Sri B.Purushotham Reddy, learned counsel representing the contesting respondent had taken this Court through the respective pleadings of the parties and also the evidence available on record and would maintain that certain admissions made by D.Ws., relating to possession of the properties in question would not in any way enure to the benefit of the appellants-plaintiffs for the reason that this is a suit for specific performance based on an oral agreement of sale and the plaintiffs were unable to discharge the burden expected to be discharged by them in a case of this nature. The learned counsel also pointed out to the other oral and documentary evidence available on record and the findings recorded by the appellate Court and would maintain that inasmuch as the relief of specific performance being discretionary relief and when for certain reasons the Court of first instance was not inclined to grant the relief as against the 2nd defendant, the first appellate Court as well would have negatived the said relief as against the 1st defendant also and hence in the light of peculiar facts of the case since the evidence available on record being not satisfactory, negativing the relief of specific performance by the appellate Court is well justified. Incidentally the learned counsel also would maintain that in such a case since it is a case of oral agreement of sale, the Doctrine of Part Performance under Section 53-A of Transfer of Property Act, 1882, also cannot be invoked. Hence, viewed from any angle the findings recorded by the appellate Court are to be confirmed. 4. Heard the counsel on record, perused the oral and documentary evidence available on record, the findings recorded by the Court of first instance, findings recorded by the appellate Court and also the grounds of appeal on the strength of which the Second Appeal had been admitted. 5. 4. Heard the counsel on record, perused the oral and documentary evidence available on record, the findings recorded by the Court of first instance, findings recorded by the appellate Court and also the grounds of appeal on the strength of which the Second Appeal had been admitted. 5. As can be seen from the substantial questions of law which had been raised in the present Second Appeal, the principal question which may have to be decided is whether the reversal of the decree and judgment made by the appellate Court be justified in the facts and circumstances of the case. 6. The parties hereinafter, for the purpose of convenience, would be referred to as plaintiffs and defendant as shown in OS No.94 of 1993 on the file of Principal District Munsif, Adoni. 7. The suit was originally instituted on the file of District Munsif, Alur as OS No.64 of 1986, which was subsequently transferred to the Principal District Munsif Court, Adoni and re-numbered as OS No.94 of 1993. The original plaintiffs filed the suit against defendants 1 and 2 for the relief of specific performance of an oral agreement of sale in relation to plaint schedule properties. Subsequent to the institution of the suit, the 2nd plaintiff died and his legal representatives were brought on record as per orders made in IA No.51 of 1991, dated 8.3.1991. 8. In substance the case of the plaintiffs as averred in the plaint is as hereunder: "Plaintiff No.1 and deceased plaintiff No.2 are father and son living jointly. D1 and D2 are brothers and Dayadis of plaintiffs. In the year 1976 on Ugadi day (Telugu New Years day) the defendants agreed to sell the plaint schedule properties to plaintiff for a sum of Rs.14,500/-. On the same day plaintiffs 1 and 2 paid the entire consideration to defendants in the presence of B.Lakshmi Reddy and others and took possession of the suit property on that day itself. The defendants agreed to come and register the land whenever wanted by the plaintiffs. The plaintiffs are the owners of the suit land and are in possession of the property as owners. Subsequent to the sale of the said land, revenue records are mutated in the name of plaintiffs and they are paying the land revenue as owners to the suit land. They are given patta pass books also. The plaintiffs are the owners of the suit land and are in possession of the property as owners. Subsequent to the sale of the said land, revenue records are mutated in the name of plaintiffs and they are paying the land revenue as owners to the suit land. They are given patta pass books also. At the time of revenue enquiry, the defendants gave statements to the revenue authorities admitting the sale of the land to the plaintiffs. The defendants sold all their lands at the suit village and purchased the land at Konakandla. In order to extract some more amounts from the plaintiffs, the defendants are trying to evade execution of the sale deed. The defendants are also trying to trespass into the suit lands. Actually on 30.6.1986 when the defendants tried to trespass into the suit land, the 2nd plaintiff prevented the same with the help of servants. 10 days prior to the filing of the suit when plaintiffs asked the defendants to execute the regular sale deed, they refused". 9. Defendants 1 and 2 filed separate written statements. 10.Defendant No.1 filed written statement with the following averments: "It is false to allege that defendants 1 and 2 received Rs.14,500/- on Ugadi day in 1976 and agreed to sell the plaint schedule land to plaintiffs 1 and 2 in the presence of one B.Lakshmi Reddy and others and on the same day the plaintiffs took possession of the suit land. D1 gave his land to plaintiffs on lease on crop sharing basis. Two years prior to the filing of the suit the first defendant took possession of the land and resumed cultivation. D1 and D2 got themselves divided during the lifetime of their father. The partition took place on 19.3.1972. In the family partition D1 got 3 acres 85 cents in S.No.144 A and he got 3 acres 50 cents of another land which is called Obanna Chenu. The 2nd defendant got 3 acres 80 cents in S.no.144 A. Taking advantage of the agreement of sale entered into by D2 with the plaintiffs, the plaintiffs have managed to get transfers in their name in revenue records. D2 has sold his share only. The 1st defendant has not given any statement before the revenue authorities. There is no cause of action against D1. There are no grounds to grant equitable relief of specific performance against D1". 11. D2 has sold his share only. The 1st defendant has not given any statement before the revenue authorities. There is no cause of action against D1. There are no grounds to grant equitable relief of specific performance against D1". 11. Defendant No.2 filed written statement with the following averments: "D2 is residing at Kowthalam with his family for the last 14 years at the time of filing of the suit. After partition with the 1st defendant, the laintiffs have been residing in the house that fell to the share of D2. As per the agreement between the plaintiffs and 2nd defendant, plaintiffs have to raise crops in the fields of 2nd defendant on his behalf and they have to adjust the expenditure towards the rent of the house of 2nd defendant. Even at the time of filing of written statement by D2, the plaintiffs are residing in the portion of the house of the 2nd defendant. The plaintiffs used to take the signature of the 2nd defendant as the rent was adjusted to the extent they spent. In fact the 2nd defendant has been enjoying the income of his share. Taking advantage of the absence of the 2nd defendant in the village for so many years with the help of Village Munsif who is the relative of the plaintiffs, have manipulated the documents and filed this false suit. The plaintiffs are in possession of the suit lands for the reasons stated above. The 2nd defendant was never examined by land revenue authorities and he never gave statement before revenue authorities admitting the alleged sale. The documents are created one behind the back of the 2nd defendant. The 2nd defendant never tried to extract money from the plaintiffs. When the 2nd defendant never sold his land, the question of evading to execute the sale deed does not arise. The 2nd defendant has nothing to do with the written statement filed by 1st defendant". 12. Before the Court of first instance, the following issues and additional issues had been settled: 1. Whether the plaintiffs are entitled for the equitable relief of specific performance of contract by sale as against D1? 2. To what relief? ADDITIONAL ISSUES: 1. Whether the plaintiffs are looking after the petition schedule land on behalf of the 2nd defendant as pleaded by 2nd defendant? 2. Whether the plaintiffs are entitled for the equitable relief of specific performance of contract by sale as against D1? 2. To what relief? ADDITIONAL ISSUES: 1. Whether the plaintiffs are looking after the petition schedule land on behalf of the 2nd defendant as pleaded by 2nd defendant? 2. Whether the plaintiffs are in possession of the land as pleaded by the 1st defendant? Before the trial Court, on behalf of the plaintiffs PWs.1 to 16 were examined and Exs.A1 to A13 were marked and on behalf of the defendants, DWs.1 to 5 were examined and Ex.B1 was marked through PW.15 and Exs.X1 and X2 also were marked. The trial Court had recast the issues as hereunder: 1. Whether the alleged oral agreement of sale is true, valid and binding on D1 and D2? 2. Whether the plaintiffs are entitled to the relief of specific performance of contract by oral sale against D1 and D2? 3. To what relief? After recasting of the issues, the trial Court discussed the oral and documentary evidence available on record at paragraphs 10 to 17 and ultimately came to the conclusion that the suit to be decreed as against 1st defendant and dismissed the suit as against 2nd defendant since no properties of the 2nd defendant had been mentioned n the plaint schedule. Aggrieved by the same, the 1st defendant carried the matter by way of appeal AS No.11 of 1994 on the file of Senior Civil Judge, Adoni, and the appellate Court at paragraph 13 framed the following points for consideration: 1. Whether the alleged oral agreement of sale set up by the plaintiffs was established by them in respect of the plaint schedule lands? 2. Whether the plaintiffs made out a case for granting the relief of specific performance of contract basing on the oral agreement of sale, as alleged by them, as against the first defendant? 3. To what relief? The appellate Court further proceeded to discuss with the oral and documentary evidence in elaboration commencing from paragraphs 14 to 55 and ultimately allowed the appeal with costs throughout in favour of the appellant and against the contesting respondents. The appellate Court, no doubt, recorded several reasons why the relief for specific performance granted by the trial Court cannot be sustained. Aggrieved by the same, the present Second Appeal had been preferred. 13. The appellate Court, no doubt, recorded several reasons why the relief for specific performance granted by the trial Court cannot be sustained. Aggrieved by the same, the present Second Appeal had been preferred. 13. The respective pleadings of the parties and also the evidence available on record had already been referred to above. The 2nd plaintiff examined himself as PW.1 and apart from the 2nd plaintiff, several other witnesses PWs.2 to 16 had been examined and Exs.A1 to A13 had been marked. As already referred to supra, Ex.B1 the letter of Tahsildar was marked through PW.15 and apart from this, Exs.X1 and X2, the sale agreements dated 29.5.1979 and 26.6.1989 also had been marked. 14. PW.1 deposed in detail relating to Exs.A1 and A2, land revenue receipts, Ex.A3 R.O.R., Ex.A4 entry in Ryot Pass Book, Exs.A5 to A8 certified copies of No.10(2), 10(1) Adangals and ROR extract and the other documents concerned with the revenue, Ex.A9 bank challan, Exs.A10 to A12 statement of the plaintiff, statement of Village Officer and statement of pattadar and Ex.A13 order of R.O.R., dated 20.1.1981. 15. PWs.2 and 3 were examined to support the versions of plaintiffs and they deposed that the entire sale consideration was paid by PW.1 to 1st defendant and possession of the lands also had been delivered to PW.1. These witnesses also no doubt supported the version of PW.1 that the transaction between PW.1 and 2nd defendant in respect of these lands had taken place about one month prior to the transaction. Apart from this evidence, the evidence of PWs.4 and 5 also is available on record. PW.4, the erstwhile Village Munsif of the village had deposed in detail about all the facts and also about the factum of possession. PW.5 also had supported the version of PW.4 and also the version of PW.1. Thus, the evidence of PWs.2 and 3 further supported by the evidence of PWs.4 and 5 coupled with the evidence of PW.1 would go to show that there was an oral agreement of sale in relation to the plaint schedule properties. PWs.2 and 3 also had specifically deposed about the payment of consideration. Coupled with this, the admissions made by DWs.1 to 5 relating to the possession of items of the properties also had been taken into consideration by the trial Court. PWs.2 and 3 also had specifically deposed about the payment of consideration. Coupled with this, the admissions made by DWs.1 to 5 relating to the possession of items of the properties also had been taken into consideration by the trial Court. The evidence of PWs.6 to 14 is more or less formal in nature and no doubt this evidence had been let in to support the version of PW.1 relating to the possession and enjoyment of the lands in question. 16. PW.15 is the 4th plaintiff in the suit and this witness deposed that after purchase of the land, plaintiffs 1 and 2 filed an application for transfer of patta and the same was effected and the patta was transferred in favour of his father and the first plaintiff. The revenue authorities enquired the defendants and their statements had been recorded. This witness also deposed about Exs.A10 to A13. In the cross-examination the letter addressed to the Mandal Revenue Officer bearing the official seal was marked as Ex.B1. 17. PW.16, who was Deputy Tahsildar, Alur, during 1980 and who was incharge of the ROR, was examined, and this witness also deposed that at the relevant point of time he is a retired Tahsildar and he had deposed about the applications received for the purpose of mutation and the entries made in the ROR and the other details. 18. Even on a careful analysis of the cross-examination of PW.16, especially the evidence of PWs.1 to 5 and 15, though the other witnesses may be of formal in nature, all the facts and circumstances would clearly go to show the fact that an oral agreement of sale had been entered into and the consideration had been paid cannot be put into serious controversy. It may be true that such possession in pursuance of an oral agreement of sale cannot be protected under the shelter of Doctrine of Part Performance. This Court is not inclined to further dwell upon this question since the possession as such appears to be not in serious controversy especially in the light of the admissions made by DWs.1 to 5. On a careful analysis of the evidence of DWs.1 to 5 also the fact that these defendants 1 and 2 left away the village for sufficiently a long time is not in serious controversy. On a careful analysis of the evidence of DWs.1 to 5 also the fact that these defendants 1 and 2 left away the village for sufficiently a long time is not in serious controversy. Though certain denials are vague, on over all appreciation, this Court is of the considered opinion that the aspect of possession also is not being seriously controverted. 19. Relief of specific performance as against the 2nd defendant was negatived since none of the properties of the 2nd defendant are shown in the plaint schedule. Recording such findings, the Court of first instance granted limited relief decreeing the suit as against the 1st defendant directing the 1st defendant to execute a registered sale deed in favour of the plaintiffs for the suit lands within a period of two months from the date of decree, failing which the plaintiffs are at liberty to get the same through process of Court. 20. It is needless to say that this Second Appeal had been preferred against a reversing decree and judgment. Strong reliance was placed on the decision of the Apex Court in SURAIN SINGH (DEAD) BY LRS. AND OTHERS vs. MEHENGA (DEAD) BY LRS.1, where the Apex Court while dealing with the interference in a Second Appeal with findings of fact when diverse findings of fact had been recorded by the trial Court observed that due to the diverse views of the two Courts and material evidence and relevant circumstances having not been adverted to by the appellate Court, High Court looking into the accounts maintained by the plaintiff-appellant and having regard to other evidence and on that basis reversing the decree of the appellate Court and restoring that of the trial Court was held to be justified and it being a finding of fact, it is not a fit case for further interference by Supreme Court under Article 136 of the Constitution of India. Reliance also was placed on the decision reported in V.V.NARASIMHA SARMA AND OTHERS vs. SOORAMPALLI APPALARAJU2, wherein the learned Judge of this Court while dealing with burden of proof and the duty of the Court in relation thereto in a suit for specific performance on the basis of an oral agreement of sale observed at paragraph 12 as hereunder: "From the evidence of PWs.1 and 2, I am inclined to draw the inference that the negotiations carried on 16.11.1979 were only provisional, a preclude to giving a concrete shape to the deal. The bargain failed to materialize on 21.11.1979. It could not therefore, be said that there was 'a concluded oral contract for sale even by 16.11.1979 itself'. Under Section 54 of the Transfer of Property Act, it is not necessary that an agreement for sale should be in writing. There is no prohibition against oral contracts for sale. In every case where a party comes up with a plea of oral contract of sale, it is the duty of the court to scrutinize the evidence very carefully before accepting that plea. When valuable properties are involved normally the parties do not conclude the bargain by oral arrangement, but when a party comes to the court pleading that he is entitled to a specific performance based on an alleged oral contract for sale, the burden lies heavily upon him to establish by acceptable and cognant evidence what he pleaded. This rigorous test is warranted in order to prevent miscarriage of justice. The risk of owners of property being defrauded by resourceful litigants in the absence of the court adopting a strict and rigorous test in respect of oral contract for sale, is real. In Harichand vs. Govind (AIR 1923 PC 47) Ameer Ali, J., speaking for the Board observed: "Whether an agreement is a completed bargain or merely a provisional arrangement depends on the intention of the parties as deducible from the language used by the parties on the occasion when the negotiations take a concrete shape". The view expressed by Parker, J., in (1912) 1 Ch. 284 was approved by the Privy Council in S.N. Mundade vs. New Moffussil Col. The view expressed by Parker, J., in (1912) 1 Ch. 284 was approved by the Privy Council in S.N. Mundade vs. New Moffussil Col. Ltd. (AIR 1946 PC 97): "......it is a question of construction whether the execution of the further contract is a condition or term of the bargain, or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through". (at P.289) Lord Du Parcq speaking for the Board in the above case (2 supra) observed very realistically: "By the law of India, such an oral contract is valid and enforceable. It was however, natural enough that the parties should wish to have their agreement put in writing and drawn up in a proper form". Learned counsel for the appellants also placed strong reliance on the decision of this Court in VASAMSETTY SURYA RAO AND OTHERS vs. VASAMSETTY DURGAYYA AND OTHERS3, wherein the learned Judge of this Court at paragraph 27 observed as hereunder: "The finding recorded by the Courts below is perverse and based only on surmises and conjectures. Absolutely, no documentary evidence has been filed by the plaintiffs to prove their case that Ex.A1 schedule property is that of the plaint schedule property. There is no evidence on record to show that the tax receipts filed by the plaintiffs relate to Ex.A1 schedule property. The plaintiffs have not shown how the old Sy.No.49/3 has been changed into Sy.No.58. On the other hand, the defendants specifically given old survey numbers and the relevant new survey numbers. There is no justification on the part of the Courts below to believe the version of the plaintiff, that old Sy.No.49/3 is changed to corresponding old Sy.no.58 and its corresponding new survey number is 122. Thus, I am of the opinion that the finding of the Courts below is perverse and contrary to the evidence. Accordingly, I set aside the said findings of both the Courts below and answer all the aforesaid questions of law as framed above in favour of the defendants and against the plaintiffs". 21. Thus, I am of the opinion that the finding of the Courts below is perverse and contrary to the evidence. Accordingly, I set aside the said findings of both the Courts below and answer all the aforesaid questions of law as framed above in favour of the defendants and against the plaintiffs". 21. Though certain of the findings of the appellate Court in relation to the applicability or otherwise of Section 53-A of Transfer of Property Act, 1882, cannot be found fault with, this Court is of the considered opinion that the reversal made by the appellate Court negativing the relief of specific performance granted as against the 1st defendant cannot be sustained for the reasons specified infra: (1) The evidence of PW.1 coupled with the evidence of PWs.2 and 3 is clear and categorical relating to the entering into the oral agreement of sale and also delivery of possession and payment of consideration. There is no serious controversy relating to this aspect. (2) The evidence of PWs.4 and 5 is clear and categorical and this evidence is of the erstwhile Village Munsif and the erstwhile Village Karnam, both are respectable persons, who had clearly supported the version of PW.1 and also the aspect of possession of the plaint schedule properties by the plaintiffs. (3) The evidence of PW.16 also is available on record apart from the evidence of PW.15, who had well supported the version of the mutation of entries which would probablise and in a way support the case of the plaintiffs relating to the oral agreement of sale set up by the plaintiffs. (4) Yet another important factor to be considered is that the possession of the properties as such is not put into serious controversy and certain of the vague denials made by DWs.1 to 5 cannot be taken into serious consideration in the light of the several admissions made by DWs.1 to 5. (5) Yet another important aspect which is not put into serious controversy at all is that defendants 1 and 2 had left the village long back once for all and had settled elsewhere. (6) Further, the documentary evidence placed before the Court also would clearly go to show that the oral agreement of sale in fact had been acted upon and the plaintiffs have been in continuous possession and enjoyment of the properties and mutations also had been effected in relation thereto. (6) Further, the documentary evidence placed before the Court also would clearly go to show that the oral agreement of sale in fact had been acted upon and the plaintiffs have been in continuous possession and enjoyment of the properties and mutations also had been effected in relation thereto. 22. In the light of the aspects which had been referred to supra since the whole oral and documentary evidence would point out only in favour of the oral agreement of sale which is said to have been entered into by the parties and in view of the fact that none of the properties of 2nd defendant had been shown in plaint schedule, the Court of first instance came to the correct conclusion in exercising the discretion while granting the relief of specific performance as against the 1st defendant and 1st defendant alone and hence the appellate Court is not justified in reversing such well considered findings recorded by the Court of first instance. Hence, the appellants are bound to succeed in the present Second Appeal. 23. Accordingly the Second Appeal is allowed and the decree and judgment of the Court of first instance are hereby restored and the decree and judgment of the appellate Court are hereby set aside. However, in the light of the peculiar facts and circumstances, the parties to the litigation to bear their own costs.