Sri H Anjanappa vs Smt Kempakka (Dead) and Others

H. Billappa, J.—This appeal by the plaintiff is directed against the judgment and decree, dated 01.10.2005, passed by the I Additional City

Civil and Sessions Judge, Bangalore, in O.S. No. 2915/1989. By the impugned judgment and decree, the Trial Court has decreed the suit of the

plaintiff in part and has directed the defendants 1 and 2 to refund the advance amount of Rs. 9,500/- to the plaintiff with interest at 9% p.a. from

the date of suit till the date of realisation.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The respondents herein are the defendants in the Trial Court. The parties will be referred to with reference to their rank in the original suit O.S.

No 2915/1989.

Briefly stated the facts are:

The appellant-plaintiff filed suit in O.S. No. 2915/1989 for declaration that the sale deed dated 23.8.1998 executed by the defendant: No. 4 on

behalf of the defendants 1 and 2 in favour of the third defendant in respect of the suit schedule property is invalid and not binding on the plaintiff

and for specific performance of the sale agreement dated 21.2.1982 and alternatively, for refund of the advance amount of Rs. 9,500/- with

interest at 18% p.a.

The case of the appellant-plaintiff was that the defendants 1 and 2 entered into sale agreement with the plaintiff on 21.2.1982 agreeing to sell the

suit schedule property for a sale consideration of Rs. 12,000/-. On 21.2.1982, a sum of Rs. 9,500/- was paid as advance. The plaintiff was put in

possession of the suit schedule property and his name was entered in the RTC. The defendants made an application for rectification of the RTC.

The first defendant died on 20.11.1995. The second defendant is his son. The fourth defendant in collusion with the other defendants created the

GPA and executed the sale-deed in favour of the third defendant. The plaintiff came to know about it only when the defendants filed written

statement on 10.9.1999. The defendants 3 and 4 have played fraud on the plaintiff. The sale transaction between the third defendant and the fourth

defendant is invalid and not binding on the plaintiff. The plaintiff was always ready and willing to perform his part of contract. Therefore, the plaintiff

has prayed for specific performance of the sale agreement dated 21.2.1982 or in the alternative, for refund of the advance amount of Rs. 9,500/-

with interest at 18% p.a.''

The defendants 1 and 2 have filed their written statement contending that they never agreed to sell the suit schedule property to the plaintiff and

as a matter of fact, there was no proposal or acceptance The defendants are not competent to enter into sale agreement. The agreement is

opposed to public policy. It is stated, the first defendant is paradanashin woman and a widow. She is an illiterate, ignorant, sick woman with a

feeble mind. The plaintiff taking advantage of the fact that the defendants were hospitalised and promising them to get the katha changed has

obtained their signatures on the blank papers. The plaintiff has misrepresented. His name has been entered in the pahani. The defendants resisted it

before the competent authority. The defendants are in possession and enjoyment of the suit schedule property. The plaintiff has no right, title or

interest in the suit schedule property. Therefore, the defendants 1 and 2 have prayed for dismissal of the suit.

The defendants 3 and 5 have filed their written statement contending that they are the lawful owners of the suit schedule property having

purchased it and they are in possession. The plaintiff and the first defendant or his mother have no right or interest in the suit schedule property. The

defendants 3 and 5 were not aware of the sale agreement dated 21.2.1982. The suit is collusive and barred by limitation. Therefore, the

defendants 3 and 5 have prayed for dismissal of the suit.

The Trial Court has framed the following issues:

Whether the plaintiff proves that on 21/2/1982 the defendants have executed an agreement of sale?

Whether the plaintiff is ready and willing to perform his obligations?

Whether the defendants prove that they are in possession?

Whether the defendants prove that the plaint schedule property is a Jodi Inam Land and they do not have a right to sell and agreement is a

created one?

What decree or order?

ADDITIONAL ISSUES

Whether the defendants 3 &5 prove that they are the bonafide purchasers of the suit property without notice of the suit agreement?

Whether the defendants 3 &5 prove that the suit agreement is fabricated?

The Trial Court has answered issue No. 1 in the affirmative and issue Nos. 2, 4 and additional issue Nos. 1 and 2 in the negative and

consequently, has decreed the suit in part directing refund of the advance amount of Rs. 9,500/- with interest at 9% p.a. from the date of suit till the

date of realisation.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the

Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the Trial Court ought to have decreed

the suit for specific performance having held that the execution of the sale agreement Ex. P.1 has been duly proved. Further he submitted that the

sale, if any, in favour of the defendant No. 3 is invalid. He also submitted that the first defendant died on 20.11.1995 and therefore, the defendant

No. 4 could not have executed the sale deed. He, therefore, submitted that the impugned judgment and decree needs to be modified for specific

performance.

As against this, the learned counsel for the respondents 2(a) to (d) submitted that the impugned judgment and decree does not call for

interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly dismissed the suit for specific

performance and therefore, the impugned judgment and decree does not call for interference. He also submitted that the suit schedule property has

been acquired by the BDA and award has been passed. There is inordinate delay in filing the suit. The plaintiff himself has claimed for refund of

advance amount. Therefore, the impugned judgement and decree does not call for interference.

I have carefully considered the submissions made by the learned counsel for the appellant and also the learned counsel for the respondents 2(a)

to (d).

The points that arises for my consideration are;

(i) Whether the Trial Court was justified in denying the relief of specific performance?

(ii) Whether the impugned judgment and decree calls for interference?

Point No. 1 and 2

It is relevant to note, the suit is for specific performance of the sale agreement dated 21-2-1982. The Trial Court considering the material on

record has held that the sale agreement dated 21.2.1982 i.e., Ex. P.1 has been duly proved but, has denied the relief of specific performance.

It is not in dispute that the plaintiff has claimed refund of the advance amount. The evidence on record shows that the suit schedule property

has been acquired by the BDA and award has been passed. The Trial Court has held that the parties are not in possession of the suit schedule

property and the agreement cannot be enforced for specific performance. The agreement is dated 21.2.1982 and the suit has been filed in the year

1989. Therefore, the Trial Court was justified in decreeing the suit for refund of the advance amount. I do not find any error or illegality in it.

Therefore, the impugned Judgement and decree does not call for interference. There is no merit in this appeal and therefore, the appeal is liable to

be dismissed. Accordingly, the appeal is dismissed.

No costs, in the circumstances of the case.