V. Eswaraiah, J.
1. These appeals are directed against the judgment and decree dated 26-11-1997 passed in O.S. No. 1 103 of 1985 by the IV Additional Judge, City Civil Court, Hyderabad.
2. The appellant in CCCA No. 29 of 1998 is the plaintiff and the appellant in CCCA No. 19 of 1998 is the defendant in the suit O.S. No. 1 103 of 1985. The parties herein are referred to as they were arrayed in the suit.
3. The plaintiff filed the suit for specific performance of oral agreement of sale directing the defendant to execute a sale deed for 2050 sq. yards out of 8200 sq. yards forming part of S. No. 219 situated at Saidabad Village within the limits of Hyderabad Municipal Corporation after obtaining necessary permission from the authorities under the Urban Land Ceiling Act or alternatively to direct the defendant to pay a sum of Rs. 169,930/- towards refund of the sale price and damages, together with future interest on the said sum @ 18% from the date of plaint till the date of realization. The trial Court decreed the suit declaring that the plaintiff is not entitled to specific performance of oral agreement of sale but is entitled to alternative relief of refund of the sale price of Rs. 1,44,330/- together with future interest on the said amount @ 18% per annum from the date of the suit till the date of realization and no relief has been granted insofar as the claim of damages is concerned. Aggrieved by the said judgment and decree dated 26-11-1997 in rejecting the relief of specific performance the plaintiff preferred an appeal in CCCA No. 29 of 1998 and the defendant preferred an appeal against the grant of refund of sale price in CCCA No. 19 of 1998.
4. It is the case of the plaintiff that the defendant is the owner of the suit schedule property and the Kartha of the Hindu Joint Family consisting of himself and his son P.V. Sainath; they inherited certain properties from their ancestors and developed the properties with the ancestral nucleus. The defendant and his son orally divided certain properties belonging to the erstwhile joint family and in the said partition the defendant inherited an undivided half share in S. No. 219 situated at Saidabad Village, within the limits of Municipal Corporation of Hyderabad and the land consists of an area of Ac. 5-32 guntas. In the year 1975 the defendant and his son entered into an agreement with M/s. Hindustan Co-operative Housing Society Limited, Chikkadpally, Hyderabad to sell Ac. 4-00 in S. No. 219 and received advance from the society and on resurvey of balance land of Ac. 1-32 guntas, it was found to be only 8200 sq. yards. It was represented to the plaintiff that the defendant was allotted an undivided half share in the said land. From out of the said land the defendant agreed to sell him an extent of 2050 sq. yards at the rate of Rs. 75/- per sq. yard and the total sale consideration to be paid was Rs. 1,53,750/-.
5. It is stated that pursuant to the agreement the plaintiff paid various amounts from 25-1-1981 to 24-8-1982 total of which is Rs. 99,330/- under Ex. A1 receipt dated 16-9-1982 as reflected in page 1 of Ex. A3. In the said receipt the defendant acknowledged the receipt of Rs. 99,330/- towards the sale transaction of part of S. No. 219 situated at Saidabad Village admeasuring about 8200 sq. yards as advance on different dates. As the said land is situated within the limits of Hyderabad Urban Agglomeration, the defendant undertook to obtain necessary permission, exemption for the sale of the said land in favour of the plaintiff. On the request of the defendant the plaintiff paid a further sum of Rs. 45,000/- under Ex. A2 receipt dated 28-3-1983. Thus, in all the plaintiff paid a sum of Rs. 1,44,330/- towards the sale price and though he was always ready and willing to perform his part of contract by paying the balance sale consideration of Rs. 9,420/- the defendant went on postponing the transaction on one pretext or the other. The defendant being a close friend of the plaintiff, he did not suspect the bona fides of the defendant, but when he approached the defendant, he evaded a firm reply as to whether he was willing to perform his part of the transaction.
6. It is stated that apprehending that the defendant was not willing to sell the suit land, the plaintiff was compelled to file the suit. It is stated that the plaintiff is seeking the relief of specific performance of agreement of sale to sell the portion of 2050 sq. yards out of defendant's share in 8200 sq. yards. Accordingly, it is stated that the plaintiff is entitled to a decree and the defendant should be directed to obtain the necessary permission/exemption to enable him to execute a sale deed in his favour. If for any reason, the said agreement of sale cannot be specifically enforced, the plaintiff is entitled to relief of refund of Rs. 1,44,330/- and Rs. 25,600/- towards damages for breach of contract, aggregating to Rs. 1,69,930/-. The plaintiff is entitled to damages, as the agreement of sale was not completed on account of the laches and default on the part of the defendant as he failed to take necessary steps with the authorities to enable him to sell the land agreed to be sold by him.
7. It is the case of the defendant in his written statement that he is the Kartha of the joint family consisting of himself and his son and the said joint family was the owner of the agricultural land bearing S. No. 219 situated at Saidabad Village, Hyderabad. It is stated that there was no oral division partitioning the said property by the joint family as alleged by the plaintiff and the joint family continued till July 1983. The defendant agreed that he and his son have entered into an agreement with Hindustan Co-operative Housing Society Limited to sell Ac. 4-00 of land in S. No. 219 and the remaining land was 8200 sq. yards. It is stated that partition took place prior to July 1983. The allegation that the defendant agreed to sell a portion of 2050 sq. yards of land at the rate of Rs. 75/- to the plaintiff is absolutely untrue and untenable and in fact, the land is within the Urban Agglomeration and attracted by the provisions of Urban (Ceiling and Regulation) Act, 1976. The plaintiff on the promise of getting the urban ceiling exemption from the concerned authorities including the Government, requested the defendant to sell the entire extent of 8200 sq. yards of land at the rate of Rs. 75/- per sq. yard and accordingly the defendant agreed for the same subject to the condition of obtaining the exemption by the plaintiff from the concerned authorities under the provisions of the ULC Act.
8. The allegation that the agreement was only with respect to 2050 sq. yards of land and the total consideration being Rs. 1,53,750/- was disputed but the defendant agreed that he received on various dates a sum of Rs. 99,330/- towards the part payment at the agreed rate for the entire extent of 8200 sq. yards. It is stated that though the market value of the land was more than Rs. 150/-, as the plaintiff himself agreed to get the exemption from the authorities, he agreed to sell the same at Rs. 75/- per sq. yard, as the defendant was holding an extent of 7000 sq. yards in excess. The defendant also agreed the payment of Rs. 1,44,330/- by the plaintiff towards the sale consideration of entire 8200 sq. yards but stated that the said consideration was not for the sale of 2050 sq. yards. It is further stated that the plaintiff was never ready to perform his part of the contract and the allegation that the balance sale consideration is Rs. 8,420/- for 2050 sq. yards is absolutely incorrect and misleading. It is stated that, in fact, he agreed to sell the entire land of 8200 sq. yards at the rate of Rs. 75/- per sq. yard and the total consideration would be Rs. 6,15,000/- and after crediting the part payment made, the balance of consideration would be Rs. 4,70,670/- but the plaintiff never offered to pay the same or obtain any permission as agreed by him under the provisions of the ULC Act. It is stated that the agreement was not related to the extent of 2050 sq. yards but it was in respect of 8200 sq. yards. It is stated that plaintiff is also not entitled for damages of Rs. 25,600/-.
9. On the said pleadings the trial Court considered the issues as to whether the plaintiff is entitled for specific performance of agreement of sale in respect of the suit property and to what relief.
10. The plaintiff-N. Chalapati Reddy was examined as P.W. 1 and marked Exs. A1 to A3 and the defendant-P. Sudhakar Reddy was examined as D.W. 1 and no documents have been marked.
11. The plaintiff, examined as P.W. 1, stated that out of 8200 sq. yards the defendant agreed to sell him an area of 2050 sq. yards at the rate of Rs. 75/- per sq. yard and he paid an amount of Rs. 99,330/- upto 16-9-1982 under Ex. A1 and thereafter on the demand of the defendant a further amount of Rs. 45,000/- was paid on 28-3-1983 under Ex. A2 and thus he paid a total sum of Rs. 1,44,330/- against the total sale consideration of Rs. 1,53,750/- for the area of 2050 sq. yards. It is stated that the defendant agreed that he shall obtain all necessary permissions including permission under Urban Land Ceiling and he shall execute the registered sale deed in his favour after receiving balance sale consideration of Rs. 9,420/-. It is stated that though the plaintiff was ready and willing to perform his part of the contract by paying the balance of sale consideration the defendant was postponing the execution of the sale deed on some pretext or the other. It is further stated that he offered the balance of sale consideration many times and asked the defendant to perform his part of obligation. It is stated that the contention of the defendant that he agreed to purchase the total area of 8200 sq. yards at Rs. 75/- per sq. yard and that he shall obtain permission under Urban Land Ceiling Act is not correct and he never agreed for the same. The defendant alone failed to keep up his promise and therefore, he filed the suit.
12. Ex A1 is the receipt dated 16-9-1982 acknowledging the receipt of Rs. 99,330/- by the defendant, Ex. A2 is the receipt dated 28-3-1983 for a sum of Rs. 45,000/- and Ex. A3 is the statement signed by the defendant showing the details of the payments on various dates consisting of three pages.
13. In the cross-examination the plaintiff stated that he has entered into an oral agreement with the defendant for the purchase of land in S. No. 219 situated in Saidabad in the year 1980. It is stated that he cannot say in which year defendant and his son got partitioned. At the time of entering into an agreement one T. Ram Reddy was also present. He has specifically admitted in the cross-examination as follows:
It is true that I have entered into oral agreement to purchase the land admeasuring 8200 sq. yards in S. No. 219 of Saidabad Village. In the year 1980 I paid amount to the defendant towards the purchase of land.
14. It is also stated that as per the terms and conditions of the agreement the defendant is at obligation to obtain necessary permission from the concerned authorities for effective transfer of title in his favour. There is no specific time for completing the formalities and also for obtaining permission. It is stated that he agreed to purchase the property at the rate of Rs. 75/- per sq. yard and he never issued any notice or letter in writing calling upon the defendant to perform his part of obligation in respect of the oral agreement entered into in 1980 but he orally demanded. He made the last payment to the defendant in the year 1983 under Ex. A2 for an amount of Rs. 45,000/-. The plaintiff in his cross-examination on 3-3-1997 further admitted as follows:
The total sale consideration would be Rs. 6,15,000/-
15. He further stated that he did not know in which year partition took place between the defendant and his son. He was ready and willing to perform his part of the contract by offering the balance of sale consideration. Prior to the filing of the suit he did not issue notice to the defendant. The suggestion that there was a partition between the defendant and his son in 1983 only was disputed. It is stated that the plaintiff never agreed to obtain urban land ceiling permission enabling him to obtain the sale deed. The suggestion that the market value of the land was Rs. 150/- per sq. yard in the year 1980-81 was denied. The plaintiff accepted that except Ex. A3 there is no document to show that the defendant agreed to sell an extent of 2050 sq. yards. He further admitted that in the year 1983 he approached the defendant with cash of Rs. 4 lakhs and odd and asked him to execute a registered sale deed. The suggestion that the plaintiff was not entitled to specific performance of agreement of sale was denied.
16. On 22-9-1997 the plaintiff was recalled on the petition for further chief-examination and he stated that Ex. A6 is the certified copy of affidavit filed by the defendant in W.P. No. 10848 of 1983, Ex. A7 is the counter filed by the Government and Ex. A8 is the certified copy of the order passed by this Court in the writ petition. As per Ex. A8 this Court directed the Government not to allot the suit land to anybody till the disposal of the defendant's application for exemption pending before the Government and this Court also directed the defendant not to alter the nature and character of the suit land.
17. The defendant, examined as D.W. 1, stated that himself and his son effected partition of the joint family in July 1983 and he entered into an oral agreement of sale with the plaintiff for an extent of 8200 sq. yards at the rate of Rs. 75/- per sq. yard. At that time the market rate per sq. yard was Rs. 150/- but since the plaintiff promised that he will obtain necessary permission from respective authorities as such he agreed to sell the same for Rs. 75/- per sq. yard. It is stated that he received Rs. 99,330/- in the year 1981-82 and in the year 1983 he received Rs. 45,000/-. The plaintiff did not inform him anything about the permission obtained by him from the authorities at any point of time as promised. At the time of the oral agreement none else were present. The plaintiff did not pay the entire sale consideration as agreed and the plaintiff was never ready and willing to perform his part of contract and that he never demanded him for execution of contract. As per the agreement the plaintiff had to pay an amount of Rs. 4,70,000/- and odd. Agreement was entered into for 8200 sq. yards. There was no provision for damages. The defendant was ready and willing to perform his part of contract even on the date of his giving evidence on 29-7-1997 subject to obtaining necessary permission by the plaintiff. The suit was filed by the plaintiff only to harass the defendant and therefore, it is liable to be dismissed.
18. In the cross-examination, the defendant stated that except the suit property the defendant did not possess any other property. He had filed a declaration under the ULC Act in respect of the suit property. In or around 1980 or 1981 he entered into an oral agreement with the plaintiff for sale of the suit land, by then the proceedings under the ULC Act were pending before the Special Officer. Orders were passed Special Officer in February 1983. He did not bring to the notice of the Special Officer about the oral agreement with the plaintiff. From out of the total extent of Ac. 5-32 guntas he sold an extent of Ac. 4-00 in the year 1977 or 1978. The Special Officer while passing orders took into account the area sold by him to the society and declared the defendant as a surplus holder to an extent of 8200 sq. yards. He filed W.P. No. 10848 of 1983 on this file of this Court questioning Section 10(3) notification issued by the Special Officer under the ULC Act. He filed exemption application before the Government in the year 1980. There is no dispute that as per Ex. A8 this Court directed the Government to consider and dispose the application of the defendant for grant of exemption sought to be filed under Section 20 of the ULC Act in accordance with the guidelines issued by the Government of India in conformity with any decision that the Supreme Court may render in that behalf. Until the disposal of the defendant's application the land in respect of exemption was not directed to be allotted to anybody or put to use by the Government and the defendant was also directed not to alter the nature and character of the lands until then. The defendant admitted that the age of his son was 34 years at the time of deposing and by the time of filing of declaration his son was minor but by 1983 his son became major. He knew late T. Ramireddy through the plaintiff and he did not enter into any land transaction with the said Ramireddy.
19. The defendant further stated that Exs. A1 to A3 bear his signatures and he received the amounts as mentioned at pages 1 and 2 of Ex. A3. He received the amounts referred under Ex. A3 from the plaintiff and T. Ramireddy. He admitted that it is mentioned in Ex. A3 that his share amount was written as Rs. 3,07,500/- and the said figure was calculated at the rate of Rs. 75/- per sq. yard. It is also admitted that himself and his son sold an extent of 198 sq. yards covered by S. No. 219 to one B. Madhusudhan Reddy under Ex. A4 registered sale deed dated 27-3-1995. It is further admitted that they sold an extent of 146 sq. yards under Ex. A5 registered sale deed dated 28-3-1995 to the same person. It is stated that he had not received any written communication from the Government with regard to the exemption application. The suggestion that there was an oral partition between him and his son earlier to 1980 and that he sold 2050 sq. yards only from and out of his share was denied. It is just and proper to extract a sentence of the deposition of D.W. 1 as follows:
It is not true to say that there was an oral partition between me and my son earlier to 1980 and that I sold 2050 sq. yards only from and out of my share.
20. It is the case of the plaintiff that as per the oral agreement the defendant - P. Sudhakar Reddy agreed that the total land owned by the defendant and his son was 8200 sq. yards and as per the abstract of Page 3 of Ex. A3 the total land is 8200 sq. yards and the agreed rate per yard was Rs. 75/- and the total sale consideration mentioned as Rs. 6,15,000/-. The share of the defendant was Rs. 3,07,500/-, the share of the plaintiff was Rs. 1,53,750/- and the share of T. Ramireddy was Rs. 1,53,750/- and the plaintiff paid a sum of Rs. 99,330/- and T. Ramireddy paid a sum of Rs. 1,39,000/-. It is stated that the plaintiff requested to arrange to pay the balance amount as early as possible to pay wealth tax for 1975 - 1983. It is stated that if the total land is 8200 sq. yards the half share value of the defendant as stated is Rs. 3,07,500/- and 1/4th share of the said land of an extent of 2050 sq. yards is Rs. 1,53,750/-. Admittedly, an amount of Rs. 99,330/- was paid as evident from the first page of Ex. A3 from 25-1-1981 to 24-8-1982 and the defendant, in fact, agreed the receipt of the said amount under Ex. A1 receipt dated 16-9-1982 which reads as follows:
Received a sum of Rs. 99,330/- (Rupees ninety nine thousand three hundred and thirty only) from M. Chalapathi Reddy R/o. Tilak Nagar, Hyderabad towards the sale transaction of part of S. No. 219 situated at Saidabad Village, measured about 8200 sq. yards as advance on different dates as per statement enclosed herewith.
Sd/-
P. Sudhakar Reddy
16-9-1982
21. There is no dispute with regard to the dates of payment of the said amount as per page 1 of Ex. A3 viz. from 25-1-1981 to 24-8-1982 and also there is no dispute that the defendant received a sum of Rs. 45,000/- from the plaintiff towards Saidabad Land plot account vide Ex. A2 dated 28-3-1983.
22. Sri M. Chandrashekara Rao, learned Senior Counsel appearing for the petitioner submits that as per the abstract of Page 3 of Ex. A3 the amount specified therein clearly goes to show that the total land is 8200 sq. yards and the total sale consideration at the rate of Rs. 75/- per sq. yard for the total extent would come to Rs. 6,15,000/- and the 1/4th share of the plaintiffs amount was rightly mentioned as Rs. 1,53,750/- and therefore, it cannot be said that the defendant has not agreed to sell an extent of 2050 sq. yards only but he has agreed to sell the entire extent of 8500 sq. yards of land. It is further submitted that as per the receipt under Ex. A1 an amount of Rs. 99,330/- was received towards the sale transaction of part of S. No. 219 admeasuring 8200 sq. yards, which means not for the entire extent of 8200 sq. yards but it shall mean for an extent of 2050 sq. yards only which is part of 8200 sq. yards.
23. Sri D. Prakash Reddy, learned Senior Counsel appearing for the respondent/defendant submits that as on the date of oral agreement the land was owned by the joint family of the defendant and his son, which continued upto July 1983 and therefore, the contention of the plaintiff that after the division of the joint family properties the defendant was allotted Vi share in 8200 sq. yards i.e. 4200 sq. yards is incorrect and the very nape 1 of Ex. A3 read as statement enclosed to receipt under Ex. A1. What was enclosed along with Ex. A1 receipt was only Page 1 of Ex. A3 statement showing the payments amounting to Rs. 99,330/-. Page 2 of Ex. A3 entirely relates to the payments made by T. Rami Reddy. It is further submitted that there was no dispute with T. Rami Reddy and he was not present at the time of agreement. Though the plaintiff stated that T. Rami Reddy was present at the time of the oral agreement he never chose to examine him and page 2 of Ex. A3 has nothing to do with the plaintiff.
24. In view of the aforesaid rival contentions the point that arises for consideration as to whether the defendant agreed to sell only 2050 sq. yards of land as alleged by the plaintiff or 8200 sq. yards of land as alleged by the defendant.
25. If the contention of the defendant that the oral agreement was for 8200 sq. yards and the plaintiff was not ready and willing to pay the balance sale consideration of Rs. 4,70,670/- though admittedly he had paid an amount of Rs. 1,44,330/-, then the plaintiff would not be entitled for specific performance of agreement of sale. If the contention of the plaintiff based on Page 3 of Ex. A3 is accepted that the total area was 8200 sq. yards and the total consideration was Rs. 6,15,000/- and the Vi share of defendant's land of 4100 sq. yards would come to Rs. 3,07,500/- and 1/4th share of the plaintiff would come to Rs. 1,53,750/- and therefore, what was agreed to be sold was only 2050 sq. yards but not 8200 sq. yards, the plaintiff would be entitled to the relief sought for.
26. To accept the contention of the learned Counsel for the plaintiff except Page 3 of Ex. A3 there is no other document that goes to show that the defendant agreed to sell only 2050 sq. yards of land but not the entire extent of 8200 sq. yards. The plaint averments show that the defendant agreed to sell 2050 sq. yards but the averments in the written statement go to show that the defendant agreed to sell the entire land of 8200 sq. yards subject to obtaining exemption from the authorities by the plaintiff. The defendant in his oral deposition stated that the plaintiff was not ready and willing to pay the balance sale consideration of Rs. 4,70,670/- and the defendant also stated in his chief-examination that he is ready and willing to perform his part of contract if the plaintiff obtains necessary permission/exemption from the authorities but the plaintiff did not accept the same even during the course of the trial. Therefore, it is stated that the plaintiff is not entitled to specific performance of the agreement of sale.
27. The plaintiff, in fact, categorically admitted in his cross-examination by the defendant that he entered into oral agreement to purchase the land admeasuring 8200 sq. yards in S. No. 219 of Saidabad Village and he has paid certain amounts to the defendant in the year 1980 and that he never issued any notice or letter in writing calling upon the defendant to perform his part of the contract though the oral agreement was entered into in 1980. The total consideration would be Rs. 6,15,000/- as per the extent mentioned in Ex. A1. No doubt, the extent mentioned in Ex. A1 is 8200 sq. yards but the learned Counsel for the plaintiff submits that the amount of Rs. 99,330/- was paid only towards part of S. No. 219 admeasuring 8200 sq. yards as advance and part of the land means 2050 sq. yards only but not the total extent of 8200 sq. yards. The admission by the plaintiff, that as per the oral agreement he agreed to purchase 8200 sq. yards for a total consideration of Rs. 6,15,000/- and approached the defendant in 1983 with a cash of Rs. 4 lakhs and odd and asked the defendant to execute a registered sale deed, goes to show that what was agreed to be sold was 8200 sq. yards but not 2050 sq. yards as alleged by the plaintiff. That is the reason why the defendant admitted in his evidence that he was ready and willing to perform his part of the contract even on the date of his further chief-examination on 22-7-1997 subject to the condition that the plaintiff obtains necessary permission. Therefore, I am of the opinion that what was agreed to be sold was whether 8200 sq. yards only and not 2050 sq. yards is not clear as per the oral evidence of the plaintiff in the cross-examination. Though the defendant clearly admitted the payment made at pages 1 and 2 of Ex. A3, the payments at page 1 relates to Rs. 99,330/- made by the plaintiff and page 2 relates to the payment made by T. Ramireddy amounting to Rs. 1,39,000/-. The defendant clearly admitted about the Abstract at page 3 of Ex. A3 with regard to the extent of land being 8200 sq. yards and the rate per sq. yard as Rs. 75/- and total consideration as Rs. 6,15,000/- and his share would amount to Rs. 3,07,500/-, the share of the plaintiff as Rs. 1,53,750/- out of which an amount of Rs. 99,330/- was received and the share of T. Ramireddy was shown as Rs. 1,53,750/- out of which an amount of Rs. 1,39,000/- was received. As per the note made therein the defendant requested them to pay the balance amount as early as possible as he has to pay the wealth tax from 1975 to 1983 immediately. But in view of the objections made by the defendant in the cross-examination it is difficult to arrive at a conclusion as to whether the agreed land to be sold by the defendant was either 8200 sq. yards or 2050 sq. yards. The pleadings are not specific, clear but they are ambiguous. Therefore, in the absence of any clear pleadings, the plaintiff is not entitled for the discretionary relief of specific performance.
28. The other question that is relevant to consider the case of the plaintiff for grant of decree for specific performance is whether the plaintiff has undertaken to obtain exemption from the authorities or whether the defendant has undertaken to obtain the exemption. There is no written document with regard to obtaining exemption. Even Exs. A1 to A3 admitted by the defendant do not show anything about the duty of the defendant to get the exemption from the Urban Land Ceiling Authority. Therefore, the plaintiff has not proved that it is the duty of the defendant to get the exemption from the Urban Land Ceiling Authorities.
29. Even if it is assumed that the plaintiff has undertaken the responsibility to get exemption from the concerned authorities, the proceedings have to be initiated in the name of the owner of the suit land i.e. the defendant. Therefore, the defendant himself filed W.P. No. 10848 of 1983 under Ex. A6 stating that he is entitled for the exemption under Section 20(1)(a) of the ULC Act and the notification issued under Section 10(3) of the Act are illegal and arbitrary. In the said writ petition a counter-affidavit has been filed under Ex. A7 on behalf of the Special Officer stating that the defendant was allowed to retain 1,000 sq. meters under Section 4(1)(b) of the Act and he was determined as surplus vacant land holder to an extent of 20,719-31 sq. meters and the land to an extent of 16,187 sq. meters alienated in favour of Hindustan Co-operative Housing Society was exempted vide orders of the Government in G.O. Ms. No. 189 dated 5-2-1983 and notification under Section 10(1) of the Act was issued for the area of 4.532.31 sq. meters, which was declared as surplus land. As the Government has not considered the request of the defendant for grant of exemption, the defendant was asked to deliver the said surplus land. This Court disposed of the said writ petition by order dated 2-12-1987 directing the Government to consider the application of the defendant.
30. In the absence of any written agreement it is difficult to believe the contentions of either party as to whether the plaintiff agreed to obtain the exemption or whether the defendant agreed to obtain the exemption but the fact remains that no exemption has been granted. It is brought to the notice of this Court that exemption has been granted vide G.O. Ms. No. 536 Revenue (UC.II) Department dated 4-8-2004 pursuant to the payment of a sum of Rs. 23,96,000/- being the amount of compensation payable in terms of G.O. Ms. No. 456 Revenue (UC.I) Department dated 29-7-2002. In view of the above exemption has been granted to an extent of only 3004 sq. meters. Therefore, as the plaintiff has failed to establish by any cogent evidence that the agreed land to be sold by the defendant was 2050 sq. yards only and more so in view of the specific admissions in his cross-examination and as the plaintiff also failed to establish that the defendant alone has undertaken to get the exemption from the Urban Land Ceiling Authorities at his costs, I am of the opinion that the trial Court rightly rejected the relief of specific performance of oral agreement of sale.
31. However, the fact remains that the plaintiff paid a sum of Rs. 1,44,330/- from January 1981 till March, 1983. The market value of the land in the Hyderabad Municipal Corporation has been increasing manifold day by day and any amount of interest on the said amount cannot be equated with rise of land value. In view of the afore said facts and circumstances of the case and as the plaintiff is not entitled to specific performance of agreement of sale for the reasons stated above and more so the partition was not proved and as the son of the defendant was not made a party to the suit proceedings the trial Court granted the alternative relief only. I am of the opinion that the trial Court ought to have granted damages of Rs. 25,600/- also in addition to the refund of Rs. 1,44,330/- along with interest at 18% per annum from the date of the payment of sale price till the date of realization.
32. In view of the aforesaid facts and circumstances of the case, the judgment and decree of the trial Court is modified and the suit is decreed directing the defendant to pay a sum of Rs. 1,44,330/- towards sale price together with interest @ 18% per annum on Rs. 99,330/- and Rs. 45,000/-, from 16-9-1982 and 28-3-1983 respectively (i.e. the payments of part of sale price covered under Exs. A1 and A2) till the date of realization. The defendant is also directed to pay damages of Rs. 25,600/- with interest thereon @ 18% per annum from the date of suit till the date of realization.
33. In the result, the appeal in CCCA No. 29 of 1998 filed by the plaintiff is partly allowed as indicated above and the appeal in CCCA No. 19 of 1998 filed by the defendant is dismissed. In the circumstances there shall be no order as to costs.