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2024 DIGILAW 1213 (AP)

Nabeen Kumar Sahu v. Baratam Bangaramma

2024-08-28

B SYAMSUNDER

body2024
JUDGMENT : B Syamsunder, J. As parties to both appeals, and their respective contentions are similar, both appeals are disposed of by way of Common Judgment. AS No.413 of 2001: 2. AS No.413 of 2001 is filed by the appellants/plaintiffs against the Judgment and Decree passed in OS No.89 of 1994 on the file of Additional Senior Civil Judge’s Court, Srikakulam dated 20.10.2000. The said suit was originally filed by the appellants/plaintiffs against the respondents for specific performance of contract of sale under oral agreement of sale, dated 01.06.1994 in between the appellants and respondent Nos.1 to 4 in respect of plaint schedule site, which is described as under: PLAINT SCHEDULE FILED BY THE ABOVE PLAINTIFFS RESPECTFULLY SHOWETH AS FOLLOWS: Vacant site situated in the southern row of Mandala Street, Near Surya Mahal Theatre, in Srikakulam town, within the limits of Srikakulam Sub-Registration in Srikakulam Mandal in Srikakulam District, measuring East to West 37 feet (11.28 metres) and North to South 80 feet (24.54 metres) i.e., 7 ½ cents covered by Town Survey Number 47 whose market value is Rs.4.12,500-00 at the rate of Rs.55,000-00 ps per cent having the following boundaries: East Vacant site of Baratam Kutumba Rao and family. South Majia Mosque site. West North Mandala Street road leading from G.T.Road to Murali Talkies. 3. During pendency of the suit, the respondent Nos.5 and 6 have filed petition to implead them as defendants in the suit, which was allowed by the trial Court, who are said to be the purchasers of plaint schedule property from the respondent Nos.1 to 4, under original of Exs.B2 and B3/sale deeds. During pendency of the appeal, the 1st respondent/1st defendant died, and her legal representatives are added as respondent Nos.7 to 9. 4. The appellants and the respondents hereinafter referred to as plaintiffs and defendants as arrayed before the trial Court for the sake of brevity and convenience. 5. It is the contention of the plaintiffs that they are brothers and sons of late Mr.Ramachandra Sahu. The 1st defendant is the wife, and the defendant Nos.2 to 4, are the sons of late Mr.Baratam Lakshminarayana @ Thavudu. The defendant Nos.1 to 4, are the owners of suit schedule property. 5. It is the contention of the plaintiffs that they are brothers and sons of late Mr.Ramachandra Sahu. The 1st defendant is the wife, and the defendant Nos.2 to 4, are the sons of late Mr.Baratam Lakshminarayana @ Thavudu. The defendant Nos.1 to 4, are the owners of suit schedule property. The plaintiffs submit that the husband of the 1st defendant and father of defendant Nos.2 to 4 late Mr.Lakshminarayana @ Thavudu leased out the plaint schedule site to their father Mr.Ramachandra Sahu, about 40 years back, who put-up a shed therein and was running a timber depot till the year 1977. It is the contention of the plaintiffs that after the death of Mr.Ramachandra Sahu, they are running said timber depot. While so, in the 2nd week of May, they came to know that the defendant Nos.1 to 4 are contemplating to sell the plaint schedule site, due to that the 1st plaintiff approached the 2nd defendant and came to know that his brothers and mother are contemplating to sell the plaint schedule site for better price is offered. In the 3rd week of May,1994 the plaintiffs went to the house of the defendant Nos.1 to 4 and informed their willingness to purchase plaint schedule site, who agreed to sell for the price as contemplated by them if it is @ Rs.60,000/- per cent, whereas the plaintiffs offered the price @ Rs.50,000/- per cent. The plaintiffs have stated that in order to settle the bargain, themselves and the defendant Nos.1 to 4 approached Mr.Narayanasetty Venkata Seshagiri Rao (PW.2), Advocate practicing at Srikakulam on 01.06.1994. They submit that the total extent of plaint schedule site is 7 ½ cents, and in the presence of PW.2/ Mr.N.V.Seshagiri Rao discussions were made and after deliberations, the defendant Nos.1 to 4 have agreed to sell suit site to them @ Rs.55,000/-, which they agreed to purchase. The main contention of the plaintiffs is that on 01.06.1994 the defendant Nos.1 to 4 have orally agreed to sell the plaint schedule property @ Rs.55,000/- per cent, which they agreed to purchase in the presence of PW.2/ Mr.N.V.Seshagiri Rao, Advocate and it was also agreed between the parties to pay Rs.50,000/- to the defendant Nos.1 to 4 as an advance of the sale price on or before 06.08.1994 through PW.2, and then enter a formal agreement of sale. They have stated that as agreed upon on 01.06.1994, they approached PW.2 on 05.06.1994 and paid advance amount of Rs.50,000/- payable to the defendant Nos.1 to 4 on 06.06.1994. On 06.06.1994 morning, PW.2 sent word to the defendant Nos.1 to 4, who came to his house and PW.2 asked them to receive advance amount of Rs.50,000/- paid by the plaintiffs as per terms of an oral agreement, dated 01.06.1994 said to be concluded between them, but the defendant Nos.1 to 4 refused to receive the advance amount and refused to execute agreement of sale, as per terms of an oral contract said to be concluded on 01.06.1994, and the defendant Nos.1 to 4 informed to PW.2 that they have no inclination to sell suit site in the near future. The plaintiffs have alleged that the defendant Nos.1 to 4, have committed breach of oral contract and they also filed an affidavit of PW.2, dated 02.09.1994. It is also the contention of the plaintiffs that after filing of the suit, the defendant Nos.1 to 4 executed an indemnified agreement of sale, dated 24.07.1994 in favour of the 5th defendant. They submit that they are ready and willing to perform their part of oral contract of agreement of sale, dated 01.06.1994, but the defendant Nos.1 to 4 executed registered sale deed, dated 11.07.1995 in favour of the 5th defendant, and executed registered sale deed, dated 01.07.1995 in favour of the 6th defendant, in respect of suit site. They pray to pass decree of specific performance of oral agreement of sale, dated 01.06.1994. 6. The defendant Nos.1 to 4 filed written statement, resisting the claim of the plaintiffs. It is the contention of the defendant Nos.1 to 4 that they never approached PW.2 with regard to sale of plaint schedule property and alleged oral agreement of sale, dated 01.06.1994 is created by the plaintiffs, and they have not received any advance amount. They have stated that if really such thing is happened, the plaintiffs would have immediately issued registered notice to them without waiting for three months after 06.06.1994, which they failed to do so, which itself shows that oral agreement of sale is created by them. They also stated that the plaintiffs do not have financial capacity to purchase the property, worth of several lakhs. They also stated that the plaintiffs do not have financial capacity to purchase the property, worth of several lakhs. They submit that they have executed an agreement of sale in respect of plaint schedule site in favour of the 5th defendant, agreeing to sell the suit site @ Rs.65,000/- per cent and received advance amount of Rs.1,00,000/- and then executed registered sale deed. They pray to dismiss the suit. 7. The 5th defendant filed written statement, adopting the written statement of the defendant Nos.1 to 4, and also stated that the defendant Nos.1 to 4 have executed Ex.B1/Agreement of Sale in his favour in respect of plaint schedule property, and in terms of said agreement of sale, the defendant Nos.1 to 4 have executed Exs.B2 and B3/Registered Sale Deeds in favour of the 5th defendant and the 6th defendant. They pray to dismiss the suit. 8. On the basis of above pleadings, the learned trial Judge has framed the following issues: 1. “Whether there was any concluded oral agreement between the plaintiffs and defendants 1 to 4 on 01.06.1994 to sell the plaint schedule property? 2. Whether the plaintiffs are entitled for a specific performance of the oral agreement pleaded for in the plaint? 3. To what relief”? 9. The parties went to trial. On behalf of the plaintiffs, the 1st plaintiff was examined as PW.1, and Mr.N.V.Seshagiri Rao, Advocate was examined as PW.2, and Ex.X1 was marked. On behalf of the defendants, DW.1 to DW.3 were examined, and Exs.B1 to B8 were marked. 10. The learned trial Judge, after hearing the submissions advanced by both sides, and after going through the records, dismissed the suit filed by the plaintiffs, seeking the relief of specific performance of contract by disbelieving the evidence of PW.1 and PW.2. 11. Aggrieved by the findings of the trial Court, the plaintiffs have preferred the present appeal, contending that the Judgment and Decree of the trial Court is contrary to law, weight of evidence and probabilities of the case. They submit that the trial Court is not justified in doubting the evidence of PW.2 for simple reason that one Mr.Nagaraju is happened to be the relative of PW.2, who is co-plaintiff in OS No.253 of 1995, filed by the plaintiffs and Mr.Nagaraju for injunction, against the defendant Nos.5 and 6. They submit that the trial Court is not justified in doubting the evidence of PW.2 for simple reason that one Mr.Nagaraju is happened to be the relative of PW.2, who is co-plaintiff in OS No.253 of 1995, filed by the plaintiffs and Mr.Nagaraju for injunction, against the defendant Nos.5 and 6. It is also the contention of the plaintiffs that the trial Court seems to have been carried away by misplaced sympathy that the defendant Nos.1 to 4 got higher price from the defendant Nos.5 and 6, than what was agreed in between the plaintiffs and the defendant Nos.1 to 4. They also stated that the approach of the trial Court in appreciating the evidence is not just and proper, and failed to consider that the plaintiffs who migrated to Srikakulam town for the purpose of business, running timber depot since 40 years prior to filing of the suit, and failed to note that suit has been filed within three months from the date of oral agreement of sale, dated 01.06.1994. They also stated that as themselves and previously their father were in possession and enjoyment of plaint schedule property since four decades, the defendant Nos.5 and 6 are not bonafide purchasers of plaint schedule property for valuable consideration, as they failed to verify actual possession of suit schedule property. They pray to allow the appeal and decree the suit. SA No.631 of 2011: 12. The defendant Nos.1 to 4 in OS No.554 of 2001 on the file of Principal Junior Civil Judge’s Court, Srikakulam are the appellants, and the respondent Nos.1 and 2 are the plaintiff Nos.1 and 2 in the suit. 13. Originally, the suit was filed by the respondent Nos.1 and 2 for recovery of possession of plaint schedule site, which is said to be part of site, shown in OS No.89 of 1994, which suit filed by the appellants in AS No.413 of 2001 for specific performance of contract, and the plaintiffs in OS No.554 of 2001 are the purchasers of plaint schedule site from the original owners. The plaintiffs in OS No.554 of 2001 filed the suit for recovery of possession of plaint schedule site from the defendant Nos.1 to 10 and for damages for use and occupation. The plaintiffs in OS No.554 of 2001 filed the suit for recovery of possession of plaint schedule site from the defendant Nos.1 to 10 and for damages for use and occupation. The said suit was dismissed by the trial Court, on the ground that the plaintiffs failed to seek for mandatory injunction, though held that the plaintiffs therein are the owners of plaint schedule property, and partly decreed the suit, directing the defendants to pay the rent @ Rs.1406.25 ps with interest @ 18% per annum from the date of suit, till the date of decree and further interest @ 6% per annum from the date of decree, till actual realization, with a direction to determine damages by way of separate application. 14. Aggrieved by the findings of the trial Court in OS No.554 of 2001, the plaintiffs have preferred AS No.48 of 2008 on the file of Principal District Judge, Srikakulam, which was allowed by the learned First Appellate Judge, setting aside the Judgment and Decree of the trial Court in OS No.554 of 2001, dated 11.04.2008 on the file of Principal Junior Civil Judge’s Court, Srikakulam in respect of recovery of possession of the schedule property, and directed the defendants therein to vacate the plaint schedule property and put the plaintiffs in possession of the same, within three (03) months. 15. Aggrieved by the findings of the First Appellate Court, reversing the Judgment of the trial Court with regard to recovery of possession, the defendant Nos.1 to 4 have preferred the present Second Appeal, stating that the Judgment and Decree of the Appellate Court is contrary to law, weight of evidence and probabilities of the case. They have stated that the following substantial questions of law arise for consideration in the Second Appeal: “a) Whether the Appellant Court by reversing the well considered, well reasoned, and well justified Judgment of trial Court did not commit the error? b) Whether the Appellant Court by mis-reading the evidence on record and by giving perverse findings, committed an error amounting to a substantial questions of law? c) Whether the Appellant Court the merely filing of registration extracts of the sale deeds, which is a secondary evidence is sufficient to establish title without filing the sale deeds? d) Whether the non-filing of original sale deed is permissible under law for support of pleading? c) Whether the Appellant Court the merely filing of registration extracts of the sale deeds, which is a secondary evidence is sufficient to establish title without filing the sale deeds? d) Whether the non-filing of original sale deed is permissible under law for support of pleading? e) When the superstructures are admittedly existing on the schedule property from, which the eviction is sought, whether the description of plaint schedule property as a vacant site does not destroy the case of the plaintiff Company? f) When the Appellants herein are described an un-authorized occupants of the schedule property, whether a legal duty is not cast upon the plaintiffs to seek for a mandatory injunction for removal of the superstructures adjacent on the suit schedule property”? 16. A perusal of records in OS No.554 of 2001, which shows that there is no reference of filing of OS No.89 of 1994 by the defendant Nos.1 to 4 for specific performance of a contract, in respect of 7 ½ cents of site. The plaint schedule in OS No.554 of 2001 is said to be part and parcel of the suit schedule in OS No.89 of 1994. 17. As AS No.413 of 2001 is arising out of Judgment in OS No.89 of 1994 is a comprehensive suit, this Court heard arguments on both sides in the said appeal suit. 18. The learned Senior Counsel Mr.P.Veera Reddy, representing on behalf of Mr.Karri Murali Krishna, learned Counsel for the appellants in AS No.413 of 2001 and SA No.631 of 2011 would submit that the suit filed for specific performance of oral agreement of sale is permissible under law. He would further submit that the husband of the 1st defendant in OS No.89 of 1994 leased-out plaint schedule property to the father of the plaintiffs about 40 years back, who established timber depot, due to that the defendant Nos.1 to 4 have made proposal to sell plaint schedule property, which plaintiffs are willing to purchase, and they accepted to purchase the same on 01.06.1994 @ Rs.55,000/- per cent in the presence of PW.2, an Advocate and the oral contract of agreement of sale was concluded. He argued that on 05.06.1994, the plaintiffs have paid advance amount to PW.2, payable to the defendant Nos.1 to 4, and thereafter PW.2 send for the defendant Nos.1 to 4 on 06.06.1994 to receive advance amount of Rs.50,000/-, which they refused to receive and informed that they are not willing to sell the property, and committed breach of oral contract of sale, due to that the plaintiffs have filed suit for specific performance of oral agreement of sale, dated 01.06.1994. He further argued that PW.2 said to be the relative of one of the plaintiffs in another suit, filed against the owners of the property, that itself is not a ground to discard his evidence and the defendant Nos.5 and 6 said to be purchased property, under two different sale deeds. It is the contention of the learned Senior Counsel for the appellants/plaintiffs that OS No.554 of 2001 is filed for eviction of the plaintiffs, in respect of 165 square yards small site, which is situated on the western side of suit site in OS No.89 of 1994. He argued that now the plaintiffs are not disputing the title of the defendants, and claiming relief of specific performance of oral agreement of sale, which is permissible under law, and the suit is filed within three months from the date of failure on the part of the defendant Nos.1 to 4 to execute sale deed in terms of oral agreement of sale, dated 01.06.1994, and no notice is required to be issued before filing of the suit for specific performance. He would further submit that the evidence of PW.2 cannot be brushed-aside, as he is in noble profession, and the defendant Nos.1 to 4 have personally visited the office of PW.2 and offered to sell plaint schedule property to the plaintiffs, and there was concluded contract between the parties, and thereafter the defendant Nos.1 to 4 committed breach of contract and sold the property to the defendant Nos.5 and 6. The learned Senior Counsel for the appellants relied on following precedent law. 1)K.Nanjappa (Dead) by Legal Representatives. Appellants vs. R.A.Hameed Alias Ameersab (Dead) by Legal Representatives and another. Respondents. The learned Senior Counsel for the appellants relied on following precedent law. 1)K.Nanjappa (Dead) by Legal Representatives. Appellants vs. R.A.Hameed Alias Ameersab (Dead) by Legal Representatives and another. Respondents. (2016) 1 SCC 762 , wherein it is held at Para Nos.20, 21 and 22, which reads as under: “20.Before we express our view on the findings recorded by both the trial Court and the High Court while passing a decree for specific performance, we would like to discuss first the settled proposition of law in this regard. 21. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy Council 97l) observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in Kollipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028 , and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties. 22. However, in a case where the plaintiff comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immovable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties”. He prays to allow the appeals and restore the Judgment and Decree passed by the trial Courts. 19. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties”. He prays to allow the appeals and restore the Judgment and Decree passed by the trial Courts. 19. The learned Senior Counsel Mr.D.Srinivas, representing on behalf of Mr.A.S.K.S.Bhargav, learned Counsel for the defendant Nos.1 to 4 and the plaintiffs in OS No.89 of 1994 and OS No.554 of 2001 would submit that there was no concluded contract between the parties, and the evidence of PW.2 cannot be believed, as he admittedly is having relationship with Mr.Nagaraju, who is sub-lessee of the plaintiffs, which admitted by him in his evidence, due to that the trial Court has rightly discarded and disbelieved his evidence. He argued that the property involved in CMA No.12 of 2007 is different from the present suit schedule property. He argued that the alleged oral agreement of sale is not supported by any consideration, due to that it is hit by Section 25 of Indian Contract Act, and the oral contract between the parties will not come under any exceptions under Section 25 of Indian Contract Act. It is the contention of the learned Senior Counsel for the defendants that the plaintiffs failed to prove oral agreement and there was no concluded contract and they also admittedly not paid any advance amount to the defendant Nos.1 to 4 in pursuance of alleged oral agreement of sale. He relied on following precedent law. 1) Brij Mohan and others. Appellants vs. Sugra Begum and others. Respondents. (1990) 4 SCC 147 , wherein it is held at Para No.20, which reads as under: “20. We have given our careful consideration to the arguments advanced by learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned Counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement”. 2) K.Nanjappa (Dead) by Legal Representatives. Appellants vs. R.A.Hameed Alias Ameersab (Dead) by Legal Representatives and another. Respondents. (2016) 1 SCC 762 . The ratio laid down by the Hon’ble Apex Court in the said decision also relied on by the learned Senior Counsel for the plaintiffs. 3)Sheo Dayal. Petitioner vs. Om Prakash. Respondent. 1991 SCC OnLine P&H 1182, wherein the Hon’ble High Court of Punjab and Haryana while discussing the lease held that “if amount of lease has not been paid, due to that an agreement to lease without consideration is void in view of Section 25 of the Contract Act embodies well recognized rule of law that agreements without consideration are void unless they fall within the exception stated therein and the agreement to lease does not fall in any of its exceptions”. 4)c, wherein the Hon’ble High Court of Punjab and Haryana at Chandigarh held at Para No.15, which reads as under: “15. So far as the argument of learned Counsel for the appellants as canvassed before me that merely because the cheque was dishonoured, will not absolve the parties of promise. The acceptance of the promise results into binding contract. The proposition is not tenable in view of the fact that it is the elementary principle that any agreement without consideration is void, unless of course, it is a case of acceptable exception per Section 25 of the Contract Act. Concededly, the cheque issued by the appellant was dishonoured. Same amounts to no consideration ever paid to the other party. The proposition is not tenable in view of the fact that it is the elementary principle that any agreement without consideration is void, unless of course, it is a case of acceptable exception per Section 25 of the Contract Act. Concededly, the cheque issued by the appellant was dishonoured. Same amounts to no consideration ever paid to the other party. Acceptance of the offer stood vitiated the moment the cheque was dishonoured. Merely, because a person who made the offer on acceptance of counter offer turns around and says that he still has the money to pay (assuming so), will not bind the other party. As already noted, once the cheque was dishonoured, contract stood vitiated”. He prays to dismiss the appeals. 20. Now the points that emerge for determination of this Court are: “1) Whether the appellants/plaintiffs are able to prove oral contract of agreement of sale, dated 01.06.1994 between themselves and the defendant Nos.1 to 4, and if so, whether it was concluded contract between the parties, in respect of plaint schedule property? 2) Whether the appellants/plaintiffs are entitled for specific performance of oral agreement of sale as pleaded by them in the plaint? 3) To what relief”? 21. POINT NOS.1 AND 2 : Now, there is no dispute that originally plaint schedule property in OS No.89 of 1994 belongs to the husband of the 1st defendant, and father of the defendant Nos.2 to 4, which was leased-out to the father of the plaintiffs, under registered lease deed. There is no dispute with regard to title of the defendant Nos.1 to 4, in respect of plaint schedule property and subsequent purchase of the same by the defendant Nos.5 and 6, under Exs.B2 and B3/Registered Sale Deeds. 22. The relief of specific performance of contract for the sale of immovable property is governed by equity and discretion of the Court. Ordinarily, the relief of specific performance should be granted unless equitable consideration point to its refusal. The Court can consider various circumstances, such as conduct of the parties, their respective interests under the contract and other circumstances of the case, to decide whether such relief is to be granted. Merely because, it is lawful to grant specific relief, the Court need not grant the order. But this discretion shall not be exercised in an arbitrary or unreasonable manner. Merely because, it is lawful to grant specific relief, the Court need not grant the order. But this discretion shall not be exercised in an arbitrary or unreasonable manner. The Court would not exercise the discretion in favour of specific performance, where the contract is not equal and fair, though such contract is not void. However, the Courts must exercise the discretion on the sound principles of law capable of correction by the appellate Court. It is also well settled that who seeks the equitable relief of specific performance must come to Court with the clean hands. In other words, a party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. An agreement of sale of immovable property can be oral. It can be in writing. It can be by exchange of communications which may or may not be signed. It may be by a single document by both the parties. It can also be by a document in two parts, each party signing one copy and then exchanging the signed copy as a consequence of which the purchaser has the copy signed by the vendor and a vendor has a copy signed by the purchaser. Or it can be by the vendor executing the document and delivering it to the purchaser who accepts it. 23. When the plaintiffs are pleading that there was an oral agreement of sale, and there was concluded contract between the parties on 01.06.1994 itself, the burden lies on them to prove the same. For which, they are relying on the evidence of PW.2, who is practicing an Advocate in whose presence the terms of contract said to be settled. A perusal of evidence of PW.2, which shows that he categorically admitted in his evidence that he has not issued any receipt after the plaintiffs paying Rs.50,000/- advance amount payable to the defendant Nos.1 to 4, as per oral agreement of sale, dated 01.06.1994, as he said to be received a sum of Rs.50,000/- from the plaintiffs on 05.06.1994. For which, there is no evidence as he admittedly not issued any receipt to the plaintiffs. It is also the evidence of PW.2 that he send for defendant Nos.1 to 4 on 06.06.1994, who came and refused to sell plaint schedule property, and not received the advance amount. For which, there is no evidence as he admittedly not issued any receipt to the plaintiffs. It is also the evidence of PW.2 that he send for defendant Nos.1 to 4 on 06.06.1994, who came and refused to sell plaint schedule property, and not received the advance amount. It is also admitted by PW.2 that one Mr.Satyanarayana Raju is his father-in-law, and Mr.Nagaraju is brother of his father-in-law, who is running cool drink shop since long time in plaint schedule site, who is sub-lessee of the plaintiffs. 24. The learned trial Judge has rightly observed that PW.2 is an interested witness, as he has got close relationship with one of the sublessees of the plaintiffs. Even it is presumed that there was an oral agreement of sale of a contract, it is the contention of the plaintiffs that they proposed to purchase plaint schedule property from the defendant Nos.1 to 4 @ Rs.55,000/- per cent, which agreed by them on 01.06.1994, and who also agreed to receive the advance amount of Rs.50,000/- on 06.06.1994, and then to enter into a written agreement of sale, which itself shows that there was an oral proposal on the part of the plaintiffs, and the plaintiffs have failed to prove by way of convincing evidence that said proposal was accepted by the defendant Nos.1 to 4 to come to conclusion that there was a concluded contract between the parties. Even otherwise, as rightly contended by the learned Senior Counsel for the defendant Nos.1 to 4 that admittedly no advance amount was received by the defendant Nos.1 to 4 in pursuance of alleged oral agreement of sale, due to that any contract under Section 25 of Indian Contract Act, agreement without consideration, is void, unless it comes under any exceptions as stated in the said provision. The plaintiffs failed to prove that the defendant Nos.1 to 4 have agreed upon to receive the advance amount on 06.06.1994 to come to conclusion that the defendant Nos.1 to 4 have consented for the alleged oral agreement of sale, due to that it cannot be said that it was concluded contract between the parties. 25. In a case of specific performance, it is settled law that jurisdiction to order specific performance is based on the existence of valid and enforceable contract. 25. In a case of specific performance, it is settled law that jurisdiction to order specific performance is based on the existence of valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them and specific performance will not be ordered if the contract itself suffers from defect, which makes the contract invalid or unenforceable. It is therefore, necessary that first to see whether there has been valid and enforceable contract, then to see the nature and obligation arising out of it. The contract being the foundation of an obligation the order of specific performance is to enforce that obligation. The plaintiffs have to prove valid and enforceable contract while seeking equitable relief of specific performance of contract. 26. In the present case, the plaintiffs failed to prove the oral agreement of sale dated 01.06.1994 by adducing legally acceptable evidence, and even otherwise, admittedly the defendant Nos.1 to 4 have not received any advance amount in pursuance of alleged oral agreement of sale to come to conclusion that there was valid and concluded contract between the parties, in respect of plaint schedule property. As no consideration was paid in pursuance of alleged oral agreement of sale to the defendant Nos.1 to 4, which they said to be refused as per the evidence of PW.2, due to that it cannot be said that there was a concluded contract between the parties, which entitle the plaintiffs to seek equitable relief of specific performance of contract. 27. The learned trial Judge after elaborately discussing the precedent law, and the evidence adduced by both sides, came to right conclusion and dismissed the suit, filed by the plaintiffs, seeking equitable relief of specific performance of contract. This Court did not find any irregularity or illegality in the findings arrived by the learned trial Judge in dismissing suit in OS No.89 of 1994. 28. In OS No.554 of 2001 on the file of Principal Junior Civil Judge’s Court, Srikakulam, though the learned trial Judge came to conclusion that the plaintiffs therein are entitled to seek eviction of the defendants therein from plaint schedule property, dismissed the suit, on the ground that admittedly there were super-structures in the plaint schedule property, the plaintiffs therein have failed to seek the relief of mandatory injunction. The findings arrived by the learned trial Judge in OS No.554 of 2001 with regard to the contentions of the plaintiffs therein that they are entitled to seek for eviction was upheld by the learned trial Judge, which was not questioned by the defendants therein by filing any crossappeal, and the learned trial Judge also observed that the plaintiffs are entitled for recovery of possession, but refused to grant the relief of recovery of possession, on the ground that the plaintiffs have suppressed the existence of super-structures in the plaint schedule property. 29. Though, the defendants in the said suit have raised different ground with regard to title of the plaintiffs therein, in respect of plaint schedule site, they have not chosen to file any cross-appeal against the observation made by the learned trial Judge with regard to title of the plaintiffs, in respect of plaint schedule site, and the observation of the learned trial Judge with regard to plaintiffs’ entitlement to seek relief of recovery of possession, is not challenged by the defendants therein by filing any cross-appeal. As the relief of recovery of possession has been refused by the learned trial Judge in OS No.554 of 2001, the plaintiffs therein have preferred AS No.48 of 2008, which was allowed by the learned First Appellate Judge by relying on the ratio laid down by this Court in Dongala Venkaiah and others vs. Dongala Rajireddy, reported in 2007 (5) ALT, 621, wherein it is held that: “After all, here is a person (plaintiff) who has a decree whereby his title with regard to Ac.0.06 guntas of land was declared and recovery of possession was also ordered. Simply because, he has not sought for relief of mandatory injunction, it cannot be said that the decree is in executable. When once a decree declaring the plaintiff’s title and recovery of possession is made by the Court, in Court’s considered opinion, it is immaterial whether any structures were made in the suit schedule land either prior to the institution of the suit or during the pendency of the suit.” 30. The learned First Appellate Judge relied on Ex.A7/Registered Lease Deed, dated 15.02.1955 and contents therein held that the lessee is permitted to raise temporary constructions with an undertaking to remove the same at the time of vacating the site. The learned First Appellate Judge relied on Ex.A7/Registered Lease Deed, dated 15.02.1955 and contents therein held that the lessee is permitted to raise temporary constructions with an undertaking to remove the same at the time of vacating the site. The learned First Appellate Judge after considering the Judgment of the trial Court with regard to title of property and as the learned trial Judge refused to grant the relief of recovery of possession dismissed the suit only on the ground that the plaintiffs have not sought for mandatory injunction, rightly set-aside the Judgment of the learned trial Judge by following the ratio laid down by this Court in Dongala Venkaiah case referred supra. 31. As per Section 100 of CPC, this Court can interfere with the Judgment of the Appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by the Appellate Court is binding on this Court, unless there is any error of law in such finding. 32. In the present case, the learned First Appellate Judge has rightly appreciated the evidence on record, and reversed the Judgment of trial Court, which refused the relief of recovery of possession, only on the ground that mandatory injunction, has not sought by the plaintiffs therein, though they are entitled to seek for recovery of possession. 33. In these circumstances, finding no such questions that require consideration in SA No.631 of 2011, much less, substantial questions of law or appreciation of evidence, as pointed out by the learned Senior Counsel for the Appellants, the Second Appeal has to be dismissed. 34. POINT NO.3: In the result, AS No.413 of 2001 and SA No.631 of 2011 are hereby dismissed with costs. Consequently, all pending miscellaneous petitions, if any, in both appeals shall stand closed. The Interim Orders granted earlier, if any, in both appeals shall stand vacated.