JUDGMENT : 1. Facts in brief: The unsuccessful 1st plaintiff in O.S.No.367/89 on the file of Subordinate Judge, Vijayawada had preferred the present Appeal and in view of the fact that the sole appellant/1st plaintiff died, the legal representatives were brought on record as appellants 2 and 3 in A.S.M.P.No.24/2006 by order dated 3-1-2006. The 2nd plaintiff is shown as 7th respondent in this Appeal. The appellant and 7th respondent as plaintiffs instituted the suit praying for the relief of specific performance on the strength of oral contract of sale said to have been entered into on 12-3-1989 and also directing the defendants 1 and 3 to 6 to execute and register a proper sale deed in favour of the plaintiffs at their expense by receiving the balance of sale consideration and if they refuse to do so, the Court to execute the sale deed in accordance with law and prayed for further relief of permanent injunction restraining the defendants from selling or otherwise alienating the plaint schedule property in favour of anybody. Originally, the suit was filed against defendants 1 to 5 and subsequently by virtue of an order made in I.A.No.5089 dated 12-4-1990 Smt.Uppa Vanisree in whose favour the sale deed was got obtained by 2nd defendant from the 1st defendant for the part of plaint schedule property also had been impleaded as 6th defendant. In the light of the respective stands taken by the parties in the respective pleadings, the learned Subordinate Judge, Vijayawada having settled the Issues, recorded the evidence of P.W.1 to P.W.5, D.W.1 the D.W.4, marked Exs.A-1 to A-17, Exs.B-1 to B-13 and ultimately came to the conclusion that the plaintiffs are not entitled for the relief of specific performance of oral agreement of sale dated 12-3-1989 and accordingly the suit was dismissed with costs. Aggrieved by the same, as already referred to supra, the 1st plaintiff alone preferred the present Appeal and inasmuch as the sole appellant is no more, the legal representatives who had been brought on record at present are prosecuting the present Appeal. 2. Pleadings of the parties : The respective pleadings of the parties are as hereunder:- Averments made in the plaint: It was pleaded in the plaint that the 1st defendant being the owner of the plaint schedule property requested one Sri S.S.N. Pantulu, Retired Excise Superintendent of Narsapur, to help her in selling the plaint schedule property. 2. Pleadings of the parties : The respective pleadings of the parties are as hereunder:- Averments made in the plaint: It was pleaded in the plaint that the 1st defendant being the owner of the plaint schedule property requested one Sri S.S.N. Pantulu, Retired Excise Superintendent of Narsapur, to help her in selling the plaint schedule property. Sri S.S.N. Pantulu contacted his friend one Sama Venkata Rama Subrahmanyam, resident of Sitarampuram, Vijayawada and requested him to find out a purchaser for the said schedule property and the said S.V.R. Subrahmanyam informed the plaintiffs 1 and 2 about the 1st defendant's offer to sell and when the plaintiffs expressed their intention to purchase the said property, he asked them to come over to his house on 5-3-1989 as the 1st defendant expected was expected to come to his house on that day. On 5-3-1989, both the plaintiffs accompanied by one Chintapalli Ramachandra Rao went to the house of Subrahmanyam by which time the 1st defendant and her last son-in-law were already there. The 1st defendant offered to sell the plaint schedule property for a sum of Rs.8,00,000/- and the plaintiffs expressed their intention to purchase the same for Rs.6,00,000/- as the plaint schedule building is a very old one. As Subrahmanyam was about to leave the house on his personal work, at his instance all of them decided to reassemble on 12-3-1989 for further negotiations. The 1st defendant informed that her rent control case was posted to 9-3-1989 and that she would stay on for talks and settlement of bargain on 12-3-1989. As arranged earlier, again the plaintiffs 1 and 2 and Ch.Ramachandra Rao went to the house of Subrahmanyam at 6 .m. on 12-3-1989. The 1st defendant and her last son-in-law and Subrahmanyam were there by the time they reached there. After some discussions, the bargain was settled on the mediation of Subrahmanyam and Ch.Ramachandra Rao. The 1st defendant agreed to sell the plaint schedule property to the plaintiffs for a consideration of Rs.6,50,000/-. Then the 1st plaintiff paid then and there an advance of Rs.25,000/-towards the sale transaction on behalf of both the plaintiffs. It was agreed to pay an amount of Rs.75,000/-on 17-3-1989 and the balance of sale consideration by 12-5-1989 by way of cheque which was the date fixed for completion of sale transaction and registration of sale deed in favour of the plaintiffs. It was agreed to pay an amount of Rs.75,000/-on 17-3-1989 and the balance of sale consideration by 12-5-1989 by way of cheque which was the date fixed for completion of sale transaction and registration of sale deed in favour of the plaintiffs. It was also agreed that the possession of the portion lying vacant in the schedule property i.e., a portion of old tiled house and vacant site on the front and back be delivered to the plaintiffs on the above said date and the lessees 2nd to 4th defendants who were continuing in occupation of their respective portions be attorned to the plaintiffs. It was also agreed that the 1st defendant should obtain encumbrance certificate for the plaint schedule property for a period of 13 years and income tax clearance certificate and permission of urban land ceiling office as advised if necessary at her own expenses with the cooperation of the plaintiffs and deliver her title deeds, tax receipts etc., for schedule property to the plaintiffs along with aforesaid certificate and orders etc., at the time of execution of sale deed. It was also agreed between the parties that in case the plaintiffs fail to pay entire balance of sale consideration to the 1st defendant by 12-5-1989 due to their own fault or negligence, they should pay the said amount with interest @ 18% p.a. till the payment of the entire amount. It was further agreed that the 1st defendant is not entitled to claim interest on the balance of sale consideration till she gets ready for completion of sale transaction. The above said terms and conditions of oral contract which were settled and agreed then could not be reduced to writing as it was already late and as stamp paper was not fetched. Therefore, the 1st defendant and the plaintiffs wanted to execute written contract of sale according to usual practice on 17-3-1989 incorporating all terms and conditions of the said oral contract at the house of Sri Yellapeddi Venkata Subrahmanyam, a non-practicing advocate and related to the 1st defendant as suggested by the 1st defendant herself. The 1st defendant promised to get the rent control case adjourned from 16-3-1989 to a convenient date so that attornment of tenants to the plaintiffs and collection of rents from them by the plaintiffs and other things could be arranged if necessary. The 1st defendant promised to get the rent control case adjourned from 16-3-1989 to a convenient date so that attornment of tenants to the plaintiffs and collection of rents from them by the plaintiffs and other things could be arranged if necessary. It was further pleaded that on 16-3-1989, plaintiffs met the 1st defendant in the premises of court of Rent Controller, Vijayawada and informed her that they would be meeting her at the house of her relative Y.V.Subramanyam as required by her on 17-3-1989 at about 11 a.m. for executing the agreement of sale. On 17-3-1989, the plaintiffs along with the scribe Sri Patibanda Venkata Krishna Murthy and S.V. Subramanyam went to the house of Y.V. Subramanyam having secured non-judicial stamps and having made themselves ready to issue a cheque for the agreed amount of Rs.75,000/-on the Indian Bank to be drawn by 1st plaintiff in favour of the 1st defendant. When the plaintiffs conveyed their readiness and willingness to pay the agreed amount of Rs.75,000/- by way of cheque and to enter into the agreement of sale as settled on 12-3-1989, the 1st defendant informed them that she gave up the idea of selling the property but the plaintiffs pressed for execution of sale in terms of the oral contract already entered into. Then the 1st defendant started to give evasive replies and Ch.Ramachandra Rao and S.V. Subramanyam intervened and advised her to abide by the oral contract already entered into and to execute a written contract in terms thereof after receiving the amount of Rs.75,000/- as agreed earlier. But the 1st defendant did not heed their words and S.V. Subrahmanyam and Ch.Ramachandra Rao advised the plaintiffs to meet the 1st defendant a few days later. They also advised the 1st defendant to reconsider the matter. Then the plaintiffs informed them that they would wait till 23-3-1989 expecting the 1st defendant to come forth to execute a formal written contract. But there was no response from the 1st defendant till 23-3-1989. Then the plaintiffs got issued a registered notice dated 22-3-1989 to the 1st defendant informing that they were ready and willing to perform their part of contract and inviting her to come forth to receive cheque for Rs.75,000/- and to perform her part in terms of oral contract of sale entered into on 12-3-1989. Then the plaintiffs got issued a registered notice dated 22-3-1989 to the 1st defendant informing that they were ready and willing to perform their part of contract and inviting her to come forth to receive cheque for Rs.75,000/- and to perform her part in terms of oral contract of sale entered into on 12-3-1989. But the 1st defendant avoided to receive the said notice by post and hence the same was returned unserved. The plaintiffs got published the oral contract of sale between them and the 1st defendant in Eenadu daily on 24-3-1989 so as to serve as a notice to one and all about the said oral contract. The 1st defendant also got published through her counsel, in Eenadu dated 15-4-1989 denying the oral contract of sale and other facts. It is further mentioned in the said publication that she agreed to sell the plaint schedule property to her tenants without furnishing their names and that she received earnest money from them on 10-3-1989 after executing the agreements of sale in their favour. Having seen the said publication the plaintiffs got issued another registered notice dated 16-4-1989 to the counsel for the 1st defendant by enclosing a copy of the earlier notice dated 22-3-1989 and calling upon the 1st defendant to perform her part of the contract. The 1st defendant's counsel issued reply notice dated 28-4-1989 to the plaintiffs counsel denying the oral agreement between her and the plaintiffs. For the first time the names of purchasers and the details of sale consideration and the receipt of the earnest money from defendants 3 to 6 are mentioned in the said notice. The alleged sale agreements from the tenants of the 1st defendant i.e., the defendants 3 to 6 were mentioned in the said notice. The alleged sale agreements from the tenants of the 1st defendant i.e., defendants 3 to 6 were created for the purpose of the suit by putting anti-dates for the purpose of defeating the genuine and oral contract of sale entered into by the plaintiffs and the 1st defendant on 12-3-1989. The plaintiffs got issued a rejoinder dated 13-5-1989 to all the defendants once again that they should not enter into any transaction with the 1st defendant for the plaint schedule property and the plaintiffs are ready and willing to perform their part of the contract. The plaintiffs got issued a rejoinder dated 13-5-1989 to all the defendants once again that they should not enter into any transaction with the 1st defendant for the plaint schedule property and the plaintiffs are ready and willing to perform their part of the contract. The 1st defendant had also informed Sri S.S.N. Pantulu and others about her having entered into the said contract of sale orally on 12-3-1989 and receipt of the advance amount of Rs.25,000/-from them. The 1st defendant in order to get higher sale consideration, executed and registered fraudulent documents of sale in favour of defendants 3 to 6 with intent to defeat the plaintiffs contract and hence the suit for specific performance of oral agreement and for permanent injunction restraining the 1st defendant to execute and register the sale deed in favour of anybody in respect of the plaint schedule property. Averments made in the written statement of 1st defendant : The material allegations of the plaint had been denied and it was further pleaded that even according to the plaint and earlier notices, the alleged agreement dated 12-3-1989 is only an agreement to enter into a further agreement of sale on 17-3-1989 and the same cannot be specifically enforced. When the 1st defendant entered into contract with defendants 2 to 5 on 10-3-1989 itself, it is preposterous to contend that the 1st defendant had entered into any contract for the sale of her property on 12-3-1989 and that too for lesser sum of Rs.6,50,000/-. Several details were pressed into service with fraudulent motive to have fraudulent profit from the 1st defendant under the threat of litigation and blackmailing. The 1st defendant intended to sell her property and informed the same to Sri S.S.N. Pantulu to help her in the sale of the said property. Mr.Pantulu must have contacted S.V.R. Subrahmanyam who might have been asked to find persons interested to purchase the plaint schedule property of the 1st defendant. She was introduced to M.Sankar Rao, the 1st plaintiff, at the house of S.V.R. Subrahmanyam and another person by name Ch.Ramachandra Rao was also there. She was not introduced to N.Narasimha Rao who figured as one of the intending purchasers i.e., the 2nd defendant in the suit. The 1st defendant does not know the 2nd plaintiff and he must have introduced so as to display the solvency for the purpose of the suit. She was not introduced to N.Narasimha Rao who figured as one of the intending purchasers i.e., the 2nd defendant in the suit. The 1st defendant does not know the 2nd plaintiff and he must have introduced so as to display the solvency for the purpose of the suit. The 2nd plaintiff did not participate in deliberations on 5-3-1989. The 1st defendant was asked to quote her price for the plaint schedule property and she informed that she was expecting the price of Rs.10,00,000/-. The 1st plaintiff and Subrahmanyam informed the 1st defendant that the price quoted was on the higher side and she was asked to give her final figure about the value of the property. After thinking over the matter, the 1st defendant finallytold them that she would be willing to sell the property for Rs.8,00,000/-. After hearing the price quoted by the 1st defendant, the 1st plaintiff and Ramachandra Rao stated that the property was not worth that much and offered to purchase for Rs.6,00,000/- only. Then and there the 1st defendant positively told that she was not interested in the price quoted by the 1st plaintiff and informed that she was confident to get definitely the price very nearer to the price quoted by her i.e., Rs.8,00,000/-. After the above said talks, she never met either the 1st plaintiff or Ramachandra Rao at any place. The rent control cases of the 1st defendant were posted to 9-3-1989 and she attended the said court but the matter was adjourned from 9-3-1989 to 16-3-1989. It was also further pleaded that after the rent control case was adjourned from 9-3-1989 to 16-3-1989, her tenants told her in the Court itself that they themselves were interested to purchase their respective portions. While the 1st defendant was in the house of Y.Subrahmanyam and when Y.Subrahmanyam was not at his house, the tenants came there, agreed to purchase the property from her. Accordingly on 10-3-1989, all the four tenants agreed to purchase the property in their respective occupation @ Rs.700/-per sq. yard inclusive of the old structures that works out toRs.7,08,500/- for the entire property. The 1st defendant received earnest money also from the teants i.e., Rs.10,000/- from the 2nd defendant and Rs.5000/-each from the defendants 3 to 5. She had also passed a receipt in favour of each tenant containing the brief terms of the agreement. yard inclusive of the old structures that works out toRs.7,08,500/- for the entire property. The 1st defendant received earnest money also from the teants i.e., Rs.10,000/- from the 2nd defendant and Rs.5000/-each from the defendants 3 to 5. She had also passed a receipt in favour of each tenant containing the brief terms of the agreement. While by 10-3-1989 the property had been contracted to be sold, it is preposterous to contend that on 12-3-1989 at 6 p.m., the negotiations were finalized and she agreed to sell the property for a consideration of Rs.6,50,000/-. Since the very alleged agreement on 12-3-1989 itself is false, all other allegations connected with the said agreement are equally false. The 1st defendant never entered into any oral agreement with the plaintiffs to sell away her plaint schedule property to them nor received earnest money of Rs.25,000/-nor agreed to receive the balance consideration of Rs.75,000/- on executing the agreement of sale on 17-3-1989. It was also further pleaded that the allegations of the plaintiffs that S.V.Subrahmanyam and Ch.Ramachandra Rao advised the plaintiffs to reconsider the matter of executing the agreement of sale is false and the 1st plaintiff never met her subsequent to 9-3-1989. When there is no contract at all, the question of the plaintiffs being ready and willing to perform their part of the contract does not arise. After 17-3-1989, the 1st defendant left for Gudivada and stayed there for about 5 or 6 days and later she went to Narsapur. Thereafter, she fell sick and did not attend the Court on 28-3-1989. The 1st plaintiff is a broker in real estates business and he has no capacity and solvency to purchase the property for himself. She had not refused the notices issued by the 1st plaintiff. It is on the receipt of telegram from her Advocate she came down to Vijayawada and got the notice issued through her Advocate. Since the 1st defendant had to leave for States where her son is living, she had executed G.P.A. in favour of Kuchipudi Ramesh on 25-5-1989 and got it registered. The 1st defendant left for States on 27-5-1989. Hence the suit may be dismissed with compensatory costs. The 1st plaintiff came up with the suit with false allegations. Since the 1st defendant had to leave for States where her son is living, she had executed G.P.A. in favour of Kuchipudi Ramesh on 25-5-1989 and got it registered. The 1st defendant left for States on 27-5-1989. Hence the suit may be dismissed with compensatory costs. The 1st plaintiff came up with the suit with false allegations. Thus they are not entitled to get the equitable relief of specific performance on the alleged oral contract of sale said to have been entered into on 12-3-1989. The plaintiffs also are not entitled to seek permanent injunction restraining the 1st defendant from selling the property as she had already executed the sale deeds prior to the filing of the suit and hence the suit may be dismissed with compensatory costs. Averments made in the written statement of defendants 2 to 6: It was pleaded that the defendants 2 to 5 are the tenants of the 1st defendant and the 6th defendant is the daughter-in-law of the 2nd defendant in whose favour the 2nd defendant obtained the sale deed in respect of his tenanted premises from the 1st defendant. The 1st defendant filed eviction petitions against the defendants 2 to 4 before the Rent Controller, Vijayawada. After filing of the said petitions, the 1st defendant went to U.S.A where her son is living. She returned from the States in February 1989 and attended the Court on 9-3-1989. The defendants 2 to 5 informed the 1st defendant on 9-3-1989 that they intended to purchase their respective portions in their occupation as tenants and they would come and talk over the matter with her in the evening at the house of Y.Subrahmanyam. Accordingly, they met her on the same day evening at the house of Y.Subrahmanyam and they talked over the matter to the 1st defendant. Y.Subrahmanyam was not present in his house at that time and finally all of them agreed to purchase their respective portions in their occupation as tenants. It was further pleaded that on 10-3-1989, the defendants 1 to 5 agreed to purchase their respective portions at Rs.700/-per sq. yard inclusive of old structures. The 2nd defendant paid an advance amount of Rs.10,000/-and obtained a receipt from the 1st defendant with brief terms of agreement and the defendants 3 to 5 paid each Rs.5000/-as advance and obtained similar receipts from her. yard inclusive of old structures. The 2nd defendant paid an advance amount of Rs.10,000/-and obtained a receipt from the 1st defendant with brief terms of agreement and the defendants 3 to 5 paid each Rs.5000/-as advance and obtained similar receipts from her. In pursuance of the said agreement, the 2nd defendant paid an amount of Rs.1,00,000/- on 18-4-1989, Rs.70,000/- on 27-4-1989 and the balance consideration of Rs.2,42,000/- before the Sub-Registrar on 18-5-1989 at the time of registration of sale deed. The 6th defendant, the daughter-in-law of the 2nd defendant gave entire sale consideration to her father-in-law, the 2nd defendant. He got obtained the sale deed in her favour. The 3rd defendant paid Rs.16,000/- on 18-4-1989 and Rs.50,000/- on 6-5-1989 by way of cheque on Vysya Bank. He paid the balance of sale consideration of Rs.35,000/- before the Sub-Registrar and obtained registered sale deed from the 1st defendant on 11-5-1989 and he had been in possession and enjoyment of the same. The 4th defendant paid the balance of sale consideration of Rs.68,500/- before the Sub-Registrar and after receiving the full consideration, the 1st defendant executed a registered sale deed in her favour on 6-5-1989 in respect of the portion of the premises which was in his occupation as tenant and she had been in possession and enjoyment of the same since then. 3. Issues settled by the trial Court: 1. Whether the agreement of sale dated 10-3-1989 in favour of the defendants 2 to 5 is true? 2. Whether the defendants are the bona fide purchasers for valuable consideration? 3. Whether the oral agreement of sale dated 12-3-1989 in favour of the plaintiff is true, valid and binding on the defendants? 4. Whether the plaintiffs are always ready and wiling to perform their part of contract? 5. Whether the plaintiffs are entitled for specific performance of oral agreement of sale dated 12-3-1989? 6. To what relief? 4. Evidence available on record: Witnesses examined for plaintiffs: P.W.1 - N.Sankara Rao P.W.2 - D.Siva Koteswararao P.W.3 - Tadepaka Krishna Murthy P.W.4 - Chintapalli Ramachandra Rao P.W.5 - S.S.N. Pantulu Witnesses examined for defendants: D.W.1 - Uppu Ranga Prasad D.W.2 - V.L.N. Sastry D.W.3 - Y.V. Anantanageswara Sarma D.W.4 - S.V. Subramanya Sastry Documents marked for plaintiffs: Ex.A-1/17-3-1989 - Indian Bank cheque for Rs.75,000/- Ex.A-2/16-3-1989 - N.J. Stamp purchased by the plaintiffs for the purpose of entering into contract. Ex.A-3/17-3-1989 - Xerox copy of cheque for Rs.75,000/-issued in favour of the plaintiff. Ex.A-4/22-3-1989 - Office copy of registered notice issued to the 1st defendant Ex.A-5/ - Returned notice of the 1st defendant Ex.A-6/24-3-1989 - Paper publication in Eenadu daily Ex.A-7/15-4-1989 - Paper publication in Eenadu daily city edition Ex.A-8/16-4-1989 - Office copy of registered notice issued by the plaintiff to 1st defendant Ex.A-9/16-4-1989 - Copy of letter written by the plaintiff counsel. Ex.A-4/22-3-1989 - Office copy of registered notice issued to the 1st defendant Ex.A-5/ - Returned notice of the 1st defendant Ex.A-6/24-3-1989 - Paper publication in Eenadu daily Ex.A-7/15-4-1989 - Paper publication in Eenadu daily city edition Ex.A-8/16-4-1989 - Office copy of registered notice issued by the plaintiff to 1st defendant Ex.A-9/16-4-1989 - Copy of letter written by the plaintiff counsel. Ex.A-10/28-4-1989 - Reply registered notice issued by the Counsel for the 1st defendant to the plaintiff Counsel Ex.A-11/13-5-1989 - Office copy of registered notice issued by the plaintiff Counsel to the defendants Ex.A.12/18-5-1989 - Postal acknowledgement of 4th defendant Ex.A-13/ Returned notice of 2nd defendant Ex.A-14/ Returned notice of 5th defendant Ex.A-15/ Returned notice of 3rd defendant Ex.A-16/17-3-1989 - Original cancelled cheque for Rs.75,000/-issued in favour of the plaintiff Ex.A-17/ Death certificate Documents marked on behalf of defendants: Ex.B-1 - Certified copy of petition in R.C.C.No.262/85 Ex.B-2 - Certified copy of docket orders in R.C.C.262/85 Ex.B-3 - Certified copy of particulars furnished in R.C.C.262/85 Ex.B-4 - Certified copy of memo filed by the petitioner in R.C.C.262/85 Ex.B-5/18-5-1989 - Registration extract of sale deed Ex.B-6/5-5-1989 - Endorsement given by Municipal Corporation Ex.B-7 to 9 - Tax receipts Ex.B-10 & B-11 - Receipts issued by Municipal Corporation Ex.B-12 /10-3-1989 - Receipt cum agreement Ex.B-13/17-5-1989 - Xerox copy of application for income tax certificate Ex.B-14 - Certified copy of petition in R.C.C.264/85 Ex.B-15/ - Certified copy of docket order in R.C.C.264/85 Ex.B-16/ - Certified copy of memo filed by the petitioner in R.C.C.264/85 Ex.B-17/10-3-1989 - Receipt cum advance sale agreement executed by 1st defendant Ex.B-18/11-5-1989 - Certified copy of sale deed Ex.B-19/ - Special notice issued by Vijayawada Municipal Corporation to D.W.2 Ex.B-20/19-6-1990 -Tax receipt in favour of D.W.2 issued by Vijayawada Municipal Corporation Ex.B-21/11-9-1990 - -do- Ex.B-22/10-1989 - Receipt cum sale agreement executed by 1st defendant Ex.B-23/15-5-1989 -Original sale deed executed by 1st defendant Ex.B-24/ - Certified copy of petition in R.C.C.263/85 with docket order Ex.B-25/ - Certified copy of memo filed by the petitioner in R.C.C.263/85 Ex.B-26/ - Receipt cum sale agreement executed by 1st defendant Ex.B-27/6-5-1989 - Registration extract of sale deed Ex.B-28/ - Special notice issued by Vijayawada Municipal Corporation to the 4th defendant Ex.B-29/23-10-1990 - Tax receipt issued by Vijayawada Municipal Corporation in favour of the 4th defendant Ex.B-30 - Special notice issued by the Vijayawada Municipal Corporation to Yaddanapudi Veeranjaneya Sarma 5. Findings recorded by the trial Court in nutshell: The learned Subordinate Judge while answering Issues 3 and 4 recorded reasons in detail at paras 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and came to the conclusion that the learned Judge was able to hold that the plaintiffs did not succeed in proving the above said oral contract of sale between them and the 1st defendant on 12-3-1989 and in pursuance of the said agreement, they had contacted the 1st defendant on 12-3-1989 to obtain registered agreement and the alleged oral agreement is not true, value and binding on the defendants and in view of the said finding that no agreement of sale of the plaint schedule property was executed between the 1st defendant and plaintiffs, the question of plaintiffs being ready and willing to perform their part of the contract would not arise. The learned Judge further recorded findings while answering Issues 1 and 2 at paras 24 and 25 and came to the conclusion that the agreements of sale dated 10- 3-1989 in favour of defendants 2 to 5 are true and in pursuance of the said documents, the 1st defendant had executed sale deeds in favour of defendants 2, 3, 5 and 6 prior to the filing of the suit. While answering Issues 5 and 6, the learned Judge recorded further findings and ultimately dismissed the suit with costs. Aggrieved by the same, the present Appeal had been preferred. 6. Contentions of Ms.Meenakshi: Ms.Meenakshi, the learned Counsel representing the appellant would maintain that the evidence available on record being clear and categorical, without appreciating the evidence available on record in proper perspective, recording such findings and negativing the relief in favour of the plaintiffs cannot be sustained. Aggrieved by the same, the present Appeal had been preferred. 6. Contentions of Ms.Meenakshi: Ms.Meenakshi, the learned Counsel representing the appellant would maintain that the evidence available on record being clear and categorical, without appreciating the evidence available on record in proper perspective, recording such findings and negativing the relief in favour of the plaintiffs cannot be sustained. The learned Counsel also had taken this Court through the oral and documentary evidence available on record - PW-1 to PW-5, DW1 to DW-4, Exs.A-1 to A-17, Exs.B-1 to B-30 and would maintain that in the light of the clear evidence of PW-1 well supported by the evidence of PW-1 to PW-5 and also the clear documentary evidence Exs.A-1 to A-17, there had been a concluded contract and though it is oral agreement of sale inasmuch as the 1st defendant had not chosen to enter even the witness-box, adverse inference may have to be drawn and it may have to be taken that the oral agreement of sale as such had been proved and hence the decree of specific performance should have been granted in stead of dismissing the suit. The learned Counsel also had taken this Court through the evidence which had been recorded by the trial Court and would maintain that in the facts and circumstances, the findings being not sustainable, the Appeal to be allowed. The Counsel also strongly relied on the affidavit of Subrahmanyam and certain submissions were made that in the light of such affidavit placed before this Court, it may have to be taken that the oral agreement had been duly proved. To substantiate her contentions, the learned Counsel also placed strong reliance on several decisions. 7. Contentions of Sri T.S. Anand : Sri T.S. Anand, the learned Counsel representing the respondents 2, 4, 5 and 6 had taken this Court through the findings recorded by the trial Court and would maintain that may be that there was some preliminary discussion, but never there was any concluded contract. Clear findings had been recorded in this regard. The learned Counsel also had taken this Court through the oral evidence available on record. Clear findings had been recorded in this regard. The learned Counsel also had taken this Court through the oral evidence available on record. The Counsel also would maintain that the mere fact that the 1st defendant had not entered into witness-box would not seriously alter the situation since this being a suit for specific performance, that too based on an oral agreement of sale, the burden is on the plaintiffs to prove the same. When the plaintiffs had miserably failed in proving the oral agreement of sale, the mere fact that either there was no pleading on the part of the 1st defendant or the mere fact that the 1st defendant had not entered into the witness-box may not seriously alter the situation. The learned Counsel also would maintain that even in a case where no written statement was filed by the 1st defendant, even assuming for a moment that no such pleading had been put in, unless clear proof relating to the agreement of sale is available on record, the relief of specific performance cannot be granted. The Counsel also would maintain that the relief of specific performance is a discretionary relief. Here is a case where the 1st defendant had filed written statement in detail, but no doubt she was not examined for the reason that she left India and also the further reason being that she had lost interest in the litigation having parted with the property. Under these peculiar circumstances, it cannot be taken that any adverse interference can be drawn in this regard. Further elaborating, the Counsel also would maintain that the very foundation of the plaint is that in the suit, the two plaintiffs were shown as plaintiffs and the relief of specific performance had been prayed for in favour of both the plaintiffs. But for reasons best known, the 1st plaintiff alone had preferred the Appeal and the 2nd plaintiff was shown as 7th respondent. But for reasons best known, the 1st plaintiff alone had preferred the Appeal and the 2nd plaintiff was shown as 7th respondent. In a way, the dismissal of the suit relating to specific performance of oral agreement of sale so far as it relates to the 2nd plaintiff is concerned and the findings recorded relating thereto in a way had attained finality and in this view of the matter also, the mere fact that the 1st plaintiff alone had carried the matter by way of Appeal, this would go to show that the plaintiffs are not entitled for the relief of specific performance and at any rate when the discretion had been exercised by the trial Court after recording reasons and negatived such relief, especially in such a case where only one of the plaintiffs had chosen to challenge the findings of the trial Court, normally such findings not to be disturbed. The learned Counsel also relied upon certain decisions, pointed out to Ex.B-17 and also the further documents and Ex.B-22 and also the further findings recorded by the trial Court in this regard. The Counsel also placed reliance on certain decisions to substantiate his submissions. 8. Contentions of Sri J.Prabhakar: Sri J.Prabhakar, the learned Counsel representing the 3rd respondent while substantially adopting the submissions of Sri T.S.Anand, would maintain that here is a case where only one of the plaintiffs had chosen to challenge the decree of dismissal of the suit for specific performance. Even if the pleadings are carefully examined, when two plaintiffs have instituted the suit and having been unsuccessful in getting the relief of specific performance of oral agreement of sale, when only one of them had chosen to challenge the said decree of dismissal made by the original Court in O.S.No.367/89, the findings recorded so far as the 2nd plaintiff is concerned in a way had attained finality and hence the Appeal is bound to fail. The learned Counsel would further maintain that the mere placing of the affidavit before the Court, that too in an interlocutory application for temporary injunction cannot be treated as evidence at all. It is not as though the said Subrahmanyam was not alive. Though he was alive no steps had been taken to examine him. Clear findings had been recorded by the learned Judge in this regard and hence the said findings also not to be disturbed. It is not as though the said Subrahmanyam was not alive. Though he was alive no steps had been taken to examine him. Clear findings had been recorded by the learned Judge in this regard and hence the said findings also not to be disturbed. The learned Counsel also placed reliance on certain decisions to substantiate his submissions. 9. Heard the Counsel on record, perused the oral and documentary evidence available on record and also the findings recorded by the learned Subordinate Judge, Vijayawada. 10. In the light of the submissions made by the Counsel on record, the following Points arise for consideration in this Appeal: 1. Whether the findings recorded by the learned Subordinate Judge, Vijayawada negativing the relief of specific performance on the strength of oral agreement of sale dated 12-3-1989 by the disturbed or to be confirmed in the facts and circumstances of the case? 2. If so to what relief the parties would be entitled to? 11. Point No.1: For the purpose of convenience, the parties hereinafter would be referred to as in O.S.No.367/89 on the file of Subordinate Judge, Vijayawada -the plaintiffs and the defendants. It is needless to say that as already specified supra, the 1st plaintiff alone had carried the matter by way of Appeal and the 1st plaintiff being no more, the legal representatives -appellants 2 and 3, are at present prosecuting the litigation. The 2nd plaintiff is shown as 7th respondent. 12. The plaintiffs instituted the suit for the relief of specific performance on the strength of an oral agreement of sale dated 12-3-1989. The respective pleadings of the parties, the Issues settled, the evidence recorded by the trial Court and the findings recorded by the trial Court while answering the Issues in brief already had been referred to above. The 1st plaintiff examined himself as P.W.1 and apart from P.W.1, the evidence of P.W.2, PW.3, P.W.4 and P.W.5 also is available on record. P.W.1 deposed that the property belongs to the 1st defendant who is a resident of Narsapur and he offered to sell the plaint schedule property through one Subrahmanyam. The 1st defendant entrusted the matter to one S.S.N. Pantulu, a retired Central Excise Superintendent at Vijayawada. P.W.1 deposed that the property belongs to the 1st defendant who is a resident of Narsapur and he offered to sell the plaint schedule property through one Subrahmanyam. The 1st defendant entrusted the matter to one S.S.N. Pantulu, a retired Central Excise Superintendent at Vijayawada. P.W.1 intended to purchase and hence they met Subrahmanyam and he told them that the 1st defendant will be coming to Vijayawada on 5-3-1988 to his house and asked them to come to his house for negotiations. Several details had been narrated in relation to the tax and the settlement made both on 5-3-1989 and subsequent thereto on 12-3-1989 as well. An advance payment of Rs.25,000/- is said to have been paid to the 1st defendant on that date and it was further agreed that Rs.75,000/- as advance to be paid on 17-3-1989 to the 1st defendant by way of cheque and balance of consideration to be paid to the 1st defendant by 12-5-1989. Several of the details had been narrated by P.W.1. In the cross-examination of P.W.1, several further facts also had been elicited. The evidence of P.W.2, P.W.3, P.W.4 and P.W.5 also is available and while examining these witnesses, serious attempts had been made to show that in fact there was a concluded contract between the parties and hence it is to be taken as oral agreement of sale. Ex.A-1 is the Indian Bank cheque for Rs.75,000/-; Ex.A-2 is N.J. Stamp purchased by plaintiff for the purpose of entering into contract dated 16-3-1989; Ex.A-3 is Xerox copy of the cheque dated 17-3-1989; Ex.A-4 is the office copy of notice dated 22-3-1989; Ex.A-5 is the returned notice; Exs.A-6 and A-7 are paper publications; Ex.A-8 is the office copy of registered notice dated 16-4-1989; Ex.A-9 is a copy of letter written by the Counsel for plaintiffs; Ex.A-10 is the reply registered notice; Ex.A-11 is the office copy of notice dated 13-5-1989; Ex.A-12 is the postal acknowledgement of D.W.4; Exs.A-13, A-14 and A-15 are the returned notices of the respective defendants - defendants 2, 3 and 5 respectively; Ex.A-16 is the original cancelled cheque for Rs.75,000/- dated 17-3-1989 issued in favour of the plaintiff and Ex.A-17 is the death certificate. This is the evidence available on record on behalf of the plaintiffs. On behalf of the defendants, the evidence of D.W.1, D.W.2, D.W.3 and D.W.4 is available. This is the evidence available on record on behalf of the plaintiffs. On behalf of the defendants, the evidence of D.W.1, D.W.2, D.W.3 and D.W.4 is available. Ex.B-17 is the receipt-cum-advance sale agreement executed by the 1st defendant dated 10-3-1989. It is pertinent to note that Ex.B-17 is even prior to the alleged oral agreement of sale. Ex.B-22 is the receipt cum sale agreement executed by the 1st defendant dated 10-3-1989. Apart from Exs.B-17 and B-22, the certified copy of petition in R.C.C.262/85 - Ex.B-1, certified copy of docket order in R.C.C.262/85 - Ex.B-2, had been marked. Likewise, the certified copy of particulars furnished in R.C.C.262/85 - Ex.B-3, certified copy of memo filed by petitioner in R.C.C.262 - Ex.B-4, Exs.B-7 to B-9 - tax receipts, Ex.B-5 - registration extract of sale deed, Ex.B-6 endorsement, Exs.B-10 and B-11 - receipts, Ex.B-12 - receipt-cum-agreement, Ex.B-13 - Xerox copy of application for income-tax certificate, Ex.B-14 - certified copy of petition in R.C.C.264/85, Ex.B-15 - certified copy of docket orders in R.C.C.264/85, Ex.B-16 certified copy of memo filed by the petitioner in R.C.C.264/85, Ex.B-18 - certified copy of sale deed, Ex.B-19 - special notice, Exs.B-20 & 21 – tax receipts, Ex.B-23 - original sale deed executed by the 1st defendant dated 15-5-1989, Ex.B-24 - certified copy of petition in R.C.C.263/85 with docket order, Ex.B-25 - certified copy of memo filed by the petitioner in R.C.C.263/85, Ex.B-26 - receipt cum sale agreement executed by the 1st defendant, Ex.B-27 - registration extract of sale deed dated 6-5-1989, Ex.B-28 - special notice, Ex.B-29 - tax receipt dated 23-10-1990 and Ex.B-30 - special notice issued by the Vijayawada Municipal Corporation to Yeddanapudi Veeranjaneya Sarma, had been marked. It is needless to say that the 1st defendant had not chosen to enter into the witness box. The other contesting defendants had examined themselves and deposed relating to the purchases made by them. It is needless to say that the 1st defendant had not chosen to enter into the witness box. The other contesting defendants had examined themselves and deposed relating to the purchases made by them. Findings in detail had been recorded on the strength of Exs.B-17 and B-22 apart from the other documentary evidence available on record and also on appreciation of oral evidence of D.W.1 to D.W.4 in elaboration by the trial Court and ultimately the learned Principal Subordinate Judge, Vijayawada came to the conclusion that there might have been some preliminary discussion, but however in the light of the facts and circumstances it cannot be said that there was a concluded contract as such and hence on the strength of the alleged oral agreement of sale, the relief of specific performance cannot be granted. The other details which had been deposed by the respective witnesses need not detain this Court any longer inasmuch as the whole oral evidence had been appreciated in elaboration by the learned Principal Subordinate Judge, Vijayawada and appropriate findings had been recorded. The documentary evidence relied upon by the parties also had been referred to above. Certain of the documents which had been relied upon by the contesting defendants are in relation to the rent control proceedings. It appears, the sitting tenants thought of purchasing this property from the 1st defendant. It may be in the course of bargain initially the 1st defendant thought of entering into the contract with the plaintiffs. It may be that the 1st plaintiff along with certain others might have approached Subrahmanyam. But however, in the facts and circumstances of the case and also in the light of the findings recorded by the trial Court, this Court also is of the considered opinion that inasmuch as even two days prior to the alleged oral agreement of sale, the then sitting tenant had paid certain advances and receipts had been passed in their favour. This would go to show that there was never a concluded contract and hence the alleged oral agreement of sale as pleaded by the plaintiffs cannot be believed. These findings recorded by the trial Court cannot be found fault in any way. 13. This would go to show that there was never a concluded contract and hence the alleged oral agreement of sale as pleaded by the plaintiffs cannot be believed. These findings recorded by the trial Court cannot be found fault in any way. 13. The principal contention which had been emphasized by the Counsel representing the present appellants is that the 1st defendant had put in only written statement and had not chosen to enter into the witness box at all and hence adverse inference may have to be drawn. Sri T.S.Anand, the learned Counsel representing certain of the contesting respondents placed strong reliance on the decision of the Apex Court in Balraj Taneja and another vs. Sunil Madan and another ( AIR 1999 S.C. 3381 ) wherein the Apex Court at paras 28 and 29 observed: "Having regard to the provisions of Order 12, Rule 6; Order 5, Rule 8, specially Proviso thereto; as also Section 58 of the Evidence Act, this Court in Razia Begum's case ( AIR 1958 SC 886 ) (supra) observed as under (Para 9 of AIR): "In this connection, our attention was called to the provisions of R. 6 of O. 12 of the Code of Civil Procedure, which lays down that, upon such admissions as have been made by the Prince in this case, the Court would give judgment for the plaintiff. These provisions have got to be read along with R. 5 of O. 8 of the Code with particular reference to the proviso which is in these terms: "Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." The proviso quoted above, is identical with the proviso to S. 58 of the Evidence Act, which lays down that facts admitted need not be proved. Reading all these provisions together, it is manifest that the Court is not bound to grant the declarations prayed for, even though the facts alleged in the plaint, may have been admitted." The Court further observed (at P. 892, Para 9 of AIR):- "Hence, if the Court, in all the circumstances of a particular case, takes the view that it would insist upon the burden of the issue being fully discharged, and if the Court, in pursuance of the terms of S. 42 of the Specific Relief Act, decides, in a given case, to insist upon clear proof of even admitted facts, the Court could not be said to have exceeded its judicial powers." As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor the Court should proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8, Rule 10, CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8." It is needless to say that whether the 1st defendant had chosen to enter into the witness box or not, the plaintiffs may have to discharge their burden in proving the oral agreement of sale. However, Ms.Meenakshi, the learned Counsel representing the appellants had placed strong reliance on Vidhyadhar vs. Mankikrao and another ( AIR 1999 S.C. 1441 ) wherein the Apex Court at 15 and 16 observed: "It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs.4,500/-to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box." This Court in Y.V. Narasimha Sarma and others Vs. Soorampalli Appalaraju ( 1989(2) ALT 653 ) while dealing with a suit for specific performance on the basis of oral agreement of sale and the burden of proof to be discharged observed: "From the evidence of P.Ws.1 and 2, I am inclined to draw the interference 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 16-1-1979 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. 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. 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 P.C. 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 Mofussil Co.Ltd. (AIR 1946 P.C. 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". Lord Du Parcq speaking for the Board in the above case 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 upon a proper form". Certain submissions were made on the strength of the affidavit filed by Subrahmanyam who is said to have settled the bargain -the alleged oral agreement of sale. It is no doubt true that the affidavit of Subrahmanyam had been filed when an application praying for temporary injunction had been moved. It is not as though the said Subrahmanyam was not alive. Though the said Subrahmanyam was alive at a particular point of time, as can be seen from the dates which had been recorded by the learned Principal Subordinate Judge, Vijayawada, no steps had been taken to see that the said Subrahmanyam had been examined except filing an affidavit that too at the interlocutory stage. This is a very crucial aspect. Though the said Subrahmanyam was alive at a particular point of time, as can be seen from the dates which had been recorded by the learned Principal Subordinate Judge, Vijayawada, no steps had been taken to see that the said Subrahmanyam had been examined except filing an affidavit that too at the interlocutory stage. This is a very crucial aspect. Reliance also was placed on M/s. Parekh Brothers Vs Kartick Chandra Saha and others (AIR 1968 Cal.532) and K.V. Subba Rao Vs. The State of A.P. ( AIR 1967 A.P. 202 ). It is needless to say that in the facts and circumstances of the case, it cannot be said that this affidavit to be taken as a prior statement of a dead person for the reason that the said Subrahmanyam was alive at the particular point of time and having not taken any steps at appropriate time, such a contention cannot be advanced. Hence, this affidavit which is placed on record may not help the case of the present appellants, the legal representatives of the 1st plaintiff. 14. Yet another problem is, can be seen from the averments made in the plaint, general averments had been made as though both the plaintiffs entered into the oral agreement of sale with the 1st defendant. For reasons best known, when the suit for specific performance had been dismissed, the 1st plaintiff alone had chosen to prefer an Appeal. The 2nd plaintiff is shown as the 7th respondent. Hence, the findings recorded as against the 2nd plaintiff who also joined along with the 1st plaintiff praying for the relief of specific performance on the strength of oral agreement of sale in a way had attained finality. The findings recorded by the trial Court relating to the payment of the alleged advance said to have been paid also being convincing findings on appreciation of the oral and documentary evidence available on record especially taking into consideration the relevant dates and also the conduct of the parties, the sitting tenants trying to purchase the property and especially in the light of Exs.B-17 and B-22, cannot be found fault. Hence, in this view of the matter also, especially the relief of specific performance being a discretionary relief, when the Court of first instance negatived the relief and when one of the plaintiffs had not chosen to challenge those findings which attained finality, the legal representatives of the 1st plaintiff cannot succeed. Hence, viewed from any angle, the findings recorded by the trial Court cannot be found fault and accordingly the said findings are hereby confirmed. 15. Point No.2: In the light of the findings recorded above, the Appeal being devoid of merit, the same shall stand dismissed. In the facts and circumstances of the case, the parties to bear their own costs.