T. Dase Gowda vs D. Srinivasaiah and Others

N.D.V. Bhat J.-The appeal and the cross-objections are directed against the judgment and decree dated 15-4-1987 passed by the VII Additional City Civil Judge, Bangalore, in O.S. No.748 of 1983.

The facts relevant for the disposal of the appeal and the cross-objections, briefly stated, are as under:

The plaintiff (respondent-1) filed a suit in O.S. No.748 of 1983 praying for a decree against the defendant in the following terms:

"Therefore, the plaintiff prays for a decree against the defendants as follows:

A. (i) For a decree against the first defendant for specific performance of the agreement of sale dated 1-10-1981 executed by him in favour of the plaintiff by executing a proper sale deed in favour of the plaintiff for a sum of Rs. 1,12,000/- in respect of the suit schedule property and for duly registering the same, if necessary after obtaining a registered sale deed from Bangalore Development Authority (2nd defendant) in pursuance of the original order of allotment of the suit schedule site by the then City Improvement Trust Board, Bangalore, in his favour and after taking all such permissions and steps as are necessary in this behalf;

(ii) In the event of the first defendant failing to execute the sale deed for this Hon''ble Court itself to execute a proper sale deed for a sum of Rs. 1,12,000/- in respect of the suit schedule property in pursuance of the aforesaid agreement of sale dated 1-10-1981 after obtaining the registered sale deed in respect of the suit schedule site from the Bangalore Development Authority (2nd defendant) and after taking all other steps which the 1st defendant would be bound to take for executing the sale deed and at the costs of the first defendant;

(iii) For mesne profits in respect of the suit property from the date of the suit till the plaintiff is put in possession of the schedule property and for payment of the same to the plaintiff;

(iv) For payment of a sum of Rs. 23,000/- towards the value of the materials, articles and goods which the plaintiff had kept in the suit schedule premises and which the first defendant has misappropriated for himself;

(v) For costs of the suit and for current interest at 18% per annum; and (vi) For such other reliefs as this Hon''ble Court deems fit to grant to the plaintiff on the facts and circumstances of the case, in the ends of justice.

B. The plaintiff further prays that in the event of it is not being possible to grant a decree for specific performance of the above-said agreement of sale and for possession of the suit schedule property, this Hon''ble Court be pleased to pass a decree against the 1st defendant for payment of a sum of Rs. 4,00,000/- by way of damages and towards the value of the suit schedule property and the value of the materials, together with costs and current interest at 18% per annum and also for a charge over the suit schedule property for the realisation of these amounts in the interest of justice and equity.

The plaintiffs case, in brief, was as follows:

The 1st defendant (appellant) entered into an oral agreement with the plaintiff on 1-9-1981 agreeing to sell the suit-site along with incompleted structure thereon for a sum of Rs. 1,12,000/-and in furtherance of the same, on 3-9-1981, the 1st defendant received a sum of Rs. 41,000/- towards part-consideration of the sale amount and issued a stamped receipt in that behalf. He also put the plaintiff in possession of the suit-site and authorised the plaintiff to complete the construction of the building. The 1st defendant wanted some more money. Therefore, he offered to execute a written agreement (Ex. P.6) on 1-10-1981 and received an amount of Rs. 4,000/- from the plaintiff at that time. The plaintiff, in furtherance of the agreement, completed the construction of the building after getting the plan modified and spending more than Rs. 2,52,000/- in that behalf. He had planned to perform ''Gruha Pravesham'' on 12-4-1982. When this was so, the 1st defendant, on the night of 28-3-1982 forcibly occupied the suit premises and took possession of the several articles and goods of the plaintiff referred to in para 9 of the plaint. The plaintiffs efforts to get the matter settled with the good offices of Sri Ramaswamy Iyengar, and R.G. Patil, Advocates, proved futile. The plaintiff thereafter issued a registered notice dated 29-8-1982 calling upon him to deliver possession to him but of no avail. Hence the suit by the plaintiff praying for a decree in terms referred to hereinabove.

The 1st defendant (appellant) resisted the suit by filing his written statement. He denied the agreement pleaded by the plaintiff. He also denied that plaintiff was put in possession of the suit property. He asserted that he himself completed the construction of the house in question. He alleged that the documents produced along with the plaint were all forged. He also denied the other allegations made in the plaint which are not specifically admitted by him. He prayed for the dismissal of the suit. At this juncture, it is not necessary to refer to the pleadings in detail. However, the details wherever necessary will be dealt with at the appropriate stage.

Defendant-2 filed a separate written statement contending that it is not a necessary party to the suit as no reliefs are claimed against it. It was also contended that the suit against it is bad for want of notice under Section 64 of the B.D.A. Act. Accordingly, it prayed for the dismissal of the suit.

Defendant-3, Bharat Co-operative Bank Ltd., did not file any written statement.

On the basis of these pleadings, the trial court has framed the following issues:

(1) Whether the plaintiff proves that the 1st defendant has agreed to sell the site with the unfinished structures to him for a sum of Rs. 1,12,000/- and further he executed the agreement dated 1-10-1981?

(2) Whether the plaintiff proves that the first defendant received a sum of Rs. 41,000/- on 3-9-1981 and executed a receipt for the same and put the plaintiff in possession of the suit schedule site and structure thereon?

(3) Whether the plaintiff proves that after demolition of the portion of old structure he has put up construction in accordance with revised plan and licence obtained by him from the 2nd defendant at a cost of Rs. 2,52,000/-?

Whether the 1st defendant proves that he has put up construction on the suit schedule site out of his funds as contended in his written statement?

(4) Whether the plaintiff proves that the defendant broke open the lock of the suit schedule premises during the night of 28-3-1982 and had forcibly occupied it and took possession of articles and goods of the plaintiff as alleged in para 9 of the plaint?

(5) Whether the plaintiff is entitled for the specific performance of the agreement of sale or for a decree for damages of Rs. 4,00,000/-?

(6) Whether the suit against defendant No. 2 is not maintainable for want of notice?

(7) To what relief the parties are entitled?

Twelve witnesses including the plaintiff were examined for the plaintiff. Exhibits P. 1 to P. 165 were marked for the plaintiff. Six witnesses including defendant-1 were examined for the defendants.

The lower court, on a consideration of the evidence on record and for the reasons reflected in its judgment, answered issue Nos.1 and 2 in the affirmative. It answered the first part of issue No.3 in the affirmative and in favour of the plaintiff and the second part in the negative and against the defendants. Issue No. 4 was answered in the negative and against the defendants. Issue No. 5 was answered by holding that the plaintiff is entitled for the specific performance of the agreement of sale. Issue No. 6 was answered against the plaintiff by holding that the suit against defendant-2 is not maintainable.

At this stage, it is necessary to state that the trial court did not raise any issue relating to mesne profits and also regarding recovery of the value of the articles and goods alleged to have been taken possession of by the 1st defendant-appellant when he allegedly occupied the premises in question forcibly. However it is seen that the trial court, after a brief discussion, has held that the plaintiff is not entitled to claim mesne profits from the defendant. Further there is no discussion with reference to the claim relating to recovery of the articles referred to therein. However, the trial court has not granted any relief to the plaintiff in that regard. In the result, the trial court, on the basis of the findings given by it on several issues, decreed the suit of the plaintiff in the following terms:

"In the result, therefore, the suit of the plaintiff is decreed in part against the defendant No. 1 only for the following reliefs,- (i) The defendant No. 1 shall obtain a registered conveyance from the Bangalore Development Authority in respect of the suit site that was allotted to him by the then C.I.T.B., Bangalore, in his favour and take all such permission and steps which are requisite to alienate the suit property within a period of 3 months from the date of decree to the plaintiff;

(ii) The defendant No. 1 should execute the sale deed in favour of the plaintiff in respect of the suit property within 4 months from the date of decree and the plaintiff should deposit the balance of sale consideration in court within two months from the date of decree;

(iii) On such deposit, the defendant No. 1 should give vacant possession of the suit property to the plaintiff;

(iv) In case the defendant No. 1 fails to execute the conveyance deed, the plaintiff shall be entitled to get the same executed through court;

(v) In the circumstances of the case, there is no order as to costs and each party shall bear his own costs."

by its judgment dated 15-4-1987.

Being aggrieved by the judgment and decree passed by the trial court, defendant-1 has preferred the above appeal. Being aggrieved by that part of the decree which has gone against him, the plaintiff has preferred the cross-objections.

We have heard the arguments of Sri K.R.D. Karanth, learned counsel appearing for the appellant and Sri M. Papanna, learned counsel appearing for the 1st respondent-plaintiff and Sri K. Gopala Hegde, learned Advocate representing the B.D.A. (defendant-2).

In the light of the findings recorded by the trial court on several issues and the submissions made on either side at the Bar, the following points arise for consideration:

Whether the plaintiff has established that the defendant entered into an agreement with him to sell the suit-site with the incompleted structure thereon for a sum of Rs. 1,12,000/-?

Whether it is proved by the plaintiff that in furtherance of the said agreement, the defendant-1 received an amount of Rs. 41,000/- towards part consideration of the same and put the plaintiff in possession of the property by issuing the receipt Ex. P.1 dated 3-9-1981?

Whether the defendant-1 executed the written agreement to sell on 1-10-1981 as alleged by the plaintiff and received an amount of Rs. 4,000/- from the latter in that behalf?

Whether the plaintiff has proved that he completed the construction of the building as per the revised plan and incurred an expenditure of more than Rs. 2,52,000/- in that behalf?

Whether the plaintiff has proved that the defendant-1 has forcibly occupied the suit premises on 28-3-1982 and appropriated 79 bags of cement and certain other building materials alleged to have been kept by the plaintiff in the suit premises?

Whether the suit agreement is not legally enforceable?

Whether the plaintiff is entitled to a decree for specific performance?

Whether the plaintiff is entitled to mesne profits or damages and if so, how much?

It is seen that point Nos. 1 to 3 are interconnected in that they relate to different stages of the same agreement viz., the agreement to sell the property described in plaint-schedule. It is further seen that the agreement alleged by the plaintiff has traversed through three stages. In the first place, the agreement was oral, that is what is alleged in para 3 of the plaint. Thereafter, that is to say two days next after the date on which oral agreement came into being, the 1st defendant received an amount of Rs. 41,000/- towards part-consideration of the sale amount fixed under the agreement between the parties and handed over possession of the property, that is to say, the site and the uncompleted construction as it existed then. The third stage relating to the agreement is that the 1st defendant entered into a formal and written agreement with the plaintiff containing the precise terms after receiving an additional amount of Rs. 4,000/-.

To prove the different links in the chain of agreement to sell the property, the plaintiff has relied on oral evidence, documentary evidence and circumstantial evidence. The oral evidence pressed into service is that of P.W. 1 (plaintiff) and P.W. 2, B. Ramaswamy Iyengar, an Advocate, and the attesting witnesses to the document Ex. P. 6 viz., P.W. 3, B.N. Ningegowda and P.W. 4, Chandregowda. The documents mainly relied on in the context of execution of the agreement are: Ex. P. 1, the receipt alleged to have been issued by the defendant on 3-9-1981, and the agreement dated 1-10-1981 (Ex. P. 6). The circumstantial evidence pressed into service by the plaintiff in this behalf comprises of the circumstances flowing from the custody of the documents like Ex. P. 2, the Blue-Print; Ex. P. 3, the photostat copy of the licence; Ex. P. 4, the B.D.A. demand notice, Ex. P. 5, another B.D.A. demand notice; Ex. P. 7, the receipt for payment of water charges; Ex. P. 8, Renewal licence; Ex. P. 9, copy of the Possession Certificate; Ex. P. 10, Taxation Receipt; Ex. P. 86, the certificate issued by the K.E.B; Ex. P. 87 another certificate issued by the K.E.B. and Ex. P. 127, the receipt evidencing payment towards road-cutting charges. Reliance is also placed on Ex. D. 6, a petition (statement) made by the 1st defendant-appellant to the superiors praying for permission to dispose of the property. Support is also sought from the circumstances flowing from the exchange of correspondence between the plaintiff and the 1st defendant next before the institution of the suit. In this context, reliance is placed on the copy of the notice dated 29-8-1982 issued by the plaintiffs advocate to the defendant at Ex. P. 129 in conjunction with a letter dated 15-9-1982 at Ex. P. 143 written by the Advocate for the plaintiff, making reference to circumstances reflected in the notice issued to the defendant. He has also relied on the circumstance relating to the evidence that he completed the construction of the building in question.

The defendant, on the other hand, has relied mainly on oral evidence and other circumstances which are referred to herein below at the appropriate stage.

It is seen that the lower court, on a consideration of the evidence, as pointed out above, has recorded its findings in favour of the plaintiff on all the issues covered by the three points taken up presently for discussion.

Sri Karanth, the learned counsel for the appellant, tried to show that the judgment of the lower court suffers from serious infirmity for reasons more than one. In the first place, it was pointed out by the learned Advocate that the trial court has not considered the oral evidence reflected in the deposition of the different witnesses. It was also argued on behalf of the appellant that the evidence of P.W. 1 and P.W. 2 is rendered improbable particularly in the context of the execution of Ex. P. 1. He also invited the attention of this court to certain circumstances flowing from the document at Ex. P. 1 itself to contend that Ex. P. 1 is not acted upon. He has also referred, in this connection, to certain other circumstances which are dealt with herein below.

The submissions made by Sri Karanth, learned Advocate for the appellant, cannot be considered in isolation. A piece-meal approach to individual circumstance is likely to make the appreciation of the evidence lopsided. It is therefore necessary to look at the totality of the evidence as an integrated whole and while appreciating the evidence of different witnesses examined on behalf of the parties to the suit, the court is indeed required to take into consideration the preponderance of probability arising from the circumstances brought into being on record. At this juncture, it is relevant to note the background existing next before the agreement that allegedly took place. One of the important circumstances which would provide a background for the court to appreciate the submissions made by either side is a circumstance flowing from the petition submitted by defendant No. 1 to his superiors seeking permission to dispose of the property in question. It would be indeed refreshing to cull out a portion of the document which is marked as Ex. D. 6. In Ex. D. 6, among other things, defendant No. 1 has stated as under:

"In the circumstances, explained above being not in a position to complete the incomplete works of the construction of the building without sufficient funds, I intend now to dispose of the said building as it is and to refund the entire balance of advance along with interest due from out of the sale amount".

It is significant to note that this petition or submission made by defendant No. 1 to his official superior is dated 2-9-1981 just a day next before Ex. P. 1 was allegedly executed by defendant No. 1. This circumstance would certainly provide an inkling into the mind of the defendant No. 1 as also to the circumstance in which defendant No. 1 was placed at or about the time when Ex. P. 1 was allegedly executed by defendant No. 1. Further, it is also necessary to see as to how defendant No.1 reacted to the allegations as to agreement to sell the property at the earliest point of time. In this connection, the copy of the notice dated 29-8-1982 which is marked at Ex. P. 129 and a copy of the letter by way of reply by the defendant dated 15.9.1982 would indeed assume significance. It is necessary to note that the plaintiff through his advocate by a notice dated 29-8-1982 (Ex. P. 129) had specifically alleged in the said notice among other things that the defendant entered into an agreement for the sale of the site referred to therein together with the unfinished structure in favour of his client for a sum of Rs. 1,12,000/- on 1st September 1981. It was further alleged therein that the agreement was in the first instance only oral and the defendant received from the plaintiff a sum of Rs. 41,000/- on 3-9-1981 towards part consideration for the sale of the property in question. There are also other allegations referred to in detail in the said notice and at this juncture, it is not necessary to refer to all of them. The reaction of the defendant at the earliest point of time with reference to this allegation as pointed out earlier can be had in his letter dated 3-9-1982 marked as Ex. P. 130. The said letter is a letter addressed by the first defendant to the Advocate for the plaintiff in reply to the notice issued by the latter defendant and referred to hereinabove. In the said letter, among other things, the defendant has stated as under:

"I further inform you that the cash receipt dated 3.9.1981 has also been partly forged and materially altered."

This assertion is once again confirmed by the defendant in a subsequent letter dated 15.9.1982 which is marked at Ex. P. 143. That is a letter which the defendant has addressed to the Advocate for plaintiff in reply to the letter dated 10.9.1982 addressed by the latter to the former. In the said letter also, the defendant has stated as under.

"I am further to inform you that the alleged receipt dated 3-9-1981 is partly forged and materially altered." (emphasis supplied)

A perusal of the contents of the two letters referred to hereinabove written by the defendant would unmistakably go to show that the defendant did issue some receipt to the plaintiff. But according to him the said receipt was materially altered and partly forged. However, defendant No. 1 has not made it clear at any point of time to show as to which part is forged and which part is materially altered in Ex. P. 1. In his written statement at paras 3 and 4, the defendant has stated as under:

"3. That the allegations made in paragraph 3 of the plaint, that this defendant executed an agreement on 1-9-1981 is hereby denied much less for the amount mentioned therein.

That the other allegations made in paragraph 3 of the plaint that the plaintiff was put in possession of the suit schedule site and that the construction was incomplete and that it has been completed by the plaintiff is not only hereby denied but it is also false."

A perusal of the allegations reflected in the written statement by defendant No. 1 in the context of the allegations made in the plaint, at para 3 relating to the defendant having received considerations and having issued a receipt as per Ex. P. 1 would go to show that the defendant No. 1 has not denied the execution of the receipt dated 3-9-1981. All that he is shown to have stated is that he does not admit the agreement of 1-9-1981 and he does not admit delivering of the possession of the property as it existed then and as alleged by the plaintiff. However, the receipt of consideration of Rs. 41,000/- and the issuance of receipt in that behalf (Ex. P. 1) is not denied by him at all. However, we hasten to add here that in para 1 of his written statement, defendant No. 1 has stated that the alleged documents produced along with the plaint are all forged. Even the trend of submission made by Sri Karanth, learned advocate for the appellant at the Bar before us also did not indicate an attempt to disown Ex. P. 1 wholesale. It is also necessary to note that an attempt however is made by the defendant to show in the course of his evidence that this Ex. P. 1 itself is brought into being by the plaintiff taking advantage of the signature of defendant No. 1 on a blank paper which according to defendant No. 1 was handed over to the plaintiff in connection with the obtaining of licence.

In this connection, the evidence of the defendant in the course of his examination in chief deserves to be noted at para 40 of his deposition. In the course of his deposition (examination-in-chief) at para 40 therein, he has stated as under:

"The signature found at Ex. P. 1(a) on the Revenue Stamp affixed on Ex. P. 1 is not my signature. Ex. P. 1(a) appears to be a forgery of my signature."

In the course of the same para, elsewhere defendant has stated that Ex. P. 1(b) signature was put on a blank paper and it was given to the plaintiff for the purpose of obtaining licence from the B.D.A. and the plaintiff has made use of the blank paper containing his signature to create a document as per Ex. P. 1. Thus it is seen that the defendant at different points of time came out with different versions. Having regard to the reaction to the allegations made in the plaint as reflected in the correspondence hereinabove, his belated version for the first time in the course of his deposition that (Ex. P. 1) is concocted by the plaintiff taking advantage of his signature on a blank paper becomes difficult to believe. However, having regard to his version at the earliest point of time and having regard to the nature of the defence taken by the defendant in the course of his written statement and as indicated in para 3 therein, one thing is very clear; that even according to defendant''s own showing Ex. P. 1 was executed by him. This conclusion becomes confirmed if we look at the trend of cross-examination of P.W. 2, Ramaswamy Iyengar. The trend of cross-examination of P.W. 2 would indeed go to show that it is the definite case of the defendant at the stage of evidence that certain portion in Ex. P. 1 was inserted. In this connection, it would be in the fitness of things to cull out the portion of cross-examination of P.W. 2, Ramaswamy Iyengar, at para 7 of his deposition. It is elicited among other things in the course of his cross-examination as under:

"There was no difficulty for me to write Ex. P. 1(a) portion after signature on the stamp in Ex. P. 1. It is not true to suggest that I inserted Ex. P. 1(a) subsequently at the instance of the plaintiff with an intent to help as he was my friend and client. I do not remember the exact denomination of the notes of Rs. 41,000/- that was paid by the plaintiff to 1st defendant on the date of Ex. P. 1". (emphasis supplied)

At this juncture, we are constrained to observe that there appears to be some confusion with reference to the marking of the exact portion covering the alleged insertion as also with reference to the identity of the same by marking an exhibit. Ex. P. 1 reads as under:

"Received a sum of Rs. 41,000/- (Rupees Forty-one Thousand Only) with thanks towards the part consideration of the sale of the premises bearing Municipal No. 488, Block No. 1, West of Chord Road, Bangalore, the full price being Rs. 1,12,000/-. I have given possession of the premises and you can complete the construction to your choice."

In the first place, the trend of cross-examination of P.W. 2 on behalf of defendant No. 1 would go to show that a portion of Ex. P. 1 immediately above the stamp thereon was subsequently inserted. That is a definite suggestion. However, whether the suggestion refers to the portion relating to the handing over of the possession only or whether the same includes the portion relating to the full price being Rs. 1,12,000/- also is not quite clear.

Sri M. Papanna, learned Advocate for the plaintiff, submitted that it covers only the portion relating to handing over of possession whereas Sri Karanth, learned Advocate for the appellant, submits that it includes the portion relating to the full price also. However, the portion sidelined and the underlined portion in Ex. P. 1 coupled with the evidence of P.W. 2, Ramaswamy Iyengar in his examination-in-chief would indicate that the suggestion of the defendant is with reference to both relating to the full price and the delivery of possession of the property. In this connection, it is refreshing to cull out a portion of the evidence of P.W. 2, Ramaswamy Iyengar at para 2. Among other things, he has stated as under:

"The first defendant after receiving Rs. 41,000/- from the plaintiff asked him to take possession of the property and also permitted him to construct in accordance to his fancy. I have also incorporated in Ex. P 1 about delivery of possession to the plaintiff. Now I see the portion marked in Ex. P. 1. The same was inserted by me subsequently at the instance of the first defendant at the same time and place. Earlier I had only written about the payment of the amount. Subsequently, the first defendant also asked to write the delivery of possession after he signed the receipt. Since the space was not sufficient, the writing marked as Ex. D. 1 is very close. I have attested my signature to Ex. P. 1 at Ex. P. 1(c)." (emphasis supplied)

The portion of the evidence of P.W. 2 and underlined hereinabove would give us an impression that in the first instance what was written in Ex. P. 1 was only the payment regarding the amount of Rs. 41,000/- towards part consideration of the sale relating to the property described therein. It appears that the subsequent portion in Ex. P. 1 was inserted later. Whether those insertions were in the same session, that is to say a little later when Ex. P. 1 was executed, or whether the said insertions were made at a later point of time in the absence of defendant is another aspect which will be taken up for consideration later. At this juncture, it will suffice if it is noted that one thing is clear, that defendant did execute a receipt on 3-9-1981 acknowledging that he did receive an amount of Rs. 41,000/- towards part consideration of the sale amount. This conclusion gets confirmed also by other circumstances which are already referred to hereinabove and it is not necessary to risk any repetition here. It is therefore clear that Ex. P. 1 contains a clear admission on the part of the defendant that he did receive Rs. 41,000/- towards part consideration of the sale amount relating to the suit property as it stood on the date of Ex. P. 1.

It is needless to say that when a party admits or makes an admission in a written document, the admission so reflected should be presumed to be true unless, of course, the same is displaced by the person making such an admission by showing that the same is not true or that the same has been taken under the circumstances which he may indicate. However, the version given by the defendant at different point of time and referred to earlier would not indicate any attempt as such by defendant No. 1 to displace the admission which is reflected in Ex. P. 1. On the other hand, defendant as pointed out earlier has come out with different versions. In this view of the matter, the admission reflected in Ex. P. 1 at any rate to the extent indicated earlier would militate against the defendant.

Sri Karanth, learned counsel for the appellant, however as pointed out earlier tried to show that the flow of consideration reflected in Ex. P. 1 is rendered improbable in the context of the evidence of P.W. 2, Ramaswamy Iyengar, and P.W. 1, Srinivasaiah read together. In this connection, our attention is drawn to the evidence of P.W. 1, Srinivasaiah and P.W. 2, Ramaswamy Iyengar. Our attention is also drawn to certain ''inherent improbabilities'' arising from Ex. P. 1 itself. It is pointed out by the learned Advocate for the appellant that P.W. 2 has stated that Ex. P. 1 was written at about 9 a.m. or 9.30 a.m. Dilating on this aspect it was argued that Banks would generally commence functioning at 10.30 a.m. and if it is a morning branch, it would be 9 a.m. and in that context according to the learned counsel for the appellant the assertion of the plaintiff that an amount of Rs. 12,000/- was withdrawn on that day towards part of the amount of Rs. 41,000/- said to have been given to the defendant as a part consideration of the alleged sale is rendered improbable. It was also pointed out by the learned Advocate that the entries at Ex. P. 133 do not show that there was a cash withdrawal, and that the same indicated a transfer to plaintiffs personal account in the same bank which is at Ex. P. 134. Marshalling his submission on these lines, the learned Advocate contended that this circumstance together with other circumstances reflected from the evidence of P.Ws. 1 and 2 particularly in the course of their cross-examination would render improbable the recitals reflected in Ex. P. 1 that an amount of Rs. 41,000/- was paid by the plaintiff to the defendant on 3-9-1981. It was also pointed out by the learned Advocate that if as a matter of fact the parties were to enter into an agreement, the agreement itself would have been reduced to writing instead of a receipt like the one at Ex. P. 1. Marshalling the submissions on these lines in relation to the execution of Ex. P. 1, the learned Advocate contended that reliance cannot be placed on Ex. P. 1 to any extent in support of the case made out by the plaintiff that there was an agreement to sell.

We have considered the submissions made by Sri Karanth, learned Advocate for the appellant. It is true that P.W. 2, Ramaswamy Iyengar, has stated in the course of the evidence as pointed out by the learned counsel for the appellant that the document came into being at or about 9.00 or 9.30 a.m. However on that count alone it cannot be said that the plaintiff was unable to withdraw the amount on that day from any Bank. It is necessary to note that P.W. 2, Ramaswamy Iyengar, was being examined some time in the year 1986. The alleged receipt at Ex. P. 1 came into being in the year 1981. In that view of the matter, the time given by Ramaswamy Iyengar P.W. 2, with reference to the execution of Ex. P. 1 cannot be considered with such rigidity. A certain margin is indeed required to be given as regards the time of execution of Ex. P. 1 on that day having regard to the lapse of time. Looked at from that point of view, we are indeed of the view that the submission made by Sri Karanth, learned counsel for the appellant, in this behalf does not gain much force. In so far as the rest of the submissions made by the learned counsel are concerned, particularly with reference to the evidence of P.W. 1 and P.W. 2 as indicated earlier, it will suffice if it is stated that the same cannot affect the flow of irresistible inference arising from the different circumstances marshalled hereinabove. It is necessary to notice that contradictions in narration or discrepancies in detail or for that matter exaggerations on in-essential parts will not affect the evidence adduced on behalf of a party to the litigation if there is an impress of truth in the fabric of the testimony delivered as a whole. Once when the payment is evidenced and confirmed in the context of Ex. P. 1, in the context of the conduct of defendant No. 1 and in the context of the implied admission reflected in the suggestion put to P.W. 2 as pointed out earlier, the same would indeed lend corroboration to the oral evidence of P.W. 1 and P.W. 2, on the essential part reflected in their evidence with reference to the fact that there was an oral agreement between the plaintiff and defendant No. 1. Once when the conclusion that defendant No. 1 did receive an amount of Rs. 41,000/- towards sale consideration on 3-9-1981 becomes inescapable it is obvious that the same was in furtherance of some agreement; it is idle to believe that an amount of Rs. 41,000/- towards part consideration would be received or given except in the context of an agreement settled between the parties. The plaintiff did come out with an assertion that there was an oral agreement on 1-9-1981 in the notice (Ex. P. 129) issued by him. In that context it was for the defendant to come out with his own version as regards as to what for the amount of Rs. 41,000/- was received by him. Instead of coming out with any specific version in that behalf, defendant No. 1, as pointed out earlier, has come out with versions which are opposed to each other even regarding the execution of the document at Ex. P. 129. Under these circumstances, the court is indeed required to reach it own conclusion with reference to the other evidence. The other evidence which is relevant for consideration is the evidence of P.W. 1, the plaintiff and P.W. 2, Ramaswamy Iyengar, with reference to the agreement arrived at by the parties at the earliest point of time. Both of them have spoken in detail to the settlement of the amount of Rs. 1,12,000/- as the sale consideration. When a party to the litigation comes out with an assertion that a particular amount is the amount fixed by them as the sale consideration and when the other party does not speak out and takes a stand which is inconsistent with the circumstances brought into being on record, then the version given by the former in relation to that aspect is rendered probable, believable and acceptable. We are, therefore, of the view that the totality of the evidence on record would indeed indicate that the amount of Rs. 1,12,000/- was fixed as the amount of full price for the property which was agreed to be sold by the defendant to the plaintiff. We also hasten to add here that this aspect will become more clear when we consider the written agreement, viz., the agreement in writing at Ex. P. 6.

At this juncture, it will suffice if it is held that the circumstances brought into being on record and referred to hereinabove would indeed indicate that there was an oral agreement between the plaintiff and defendant on 1-9-1981 and in furtherance of the same, an amount of Rs. 41,000/- was paid to the defendant by the plaintiff towards part consideration of the sale amount.

Sri Karanth, the learned counsel ''for the appellant, however, contended that Ex. P. 1 is tainted inasmuch as there are clear indications apparent on its very face to show that there is fabrication with reference to the same. In this connection, the learned counsel for the appellant invited our attention to certain circumstances reflected from Ex. P. 1. In the first place, the learned Advocate invited our attention to the extreme congestion brought into being on account of the insertion covered by the underlined portion in Ex. P. 1. It is marked as Ex. P. 1(a). Our attention is also drawn to the fact that the signature on the stamp is strikingly different from the signature marked as Ex. P. 1(b). A contention is also raised to the effect that the circumstances leading to the taking of two signatures at Ex. P. 1(a) and P. 1(b) are replete with discrepancies and the version of P.W. 1 and P.W. 2 in that behalf if juxtaposed with each other do not tally. Further our attention is also drawn to the fact that under the caption ''witnesses'' the signature of only B. Ramaswamy Iyengar is taken. It was also contended by the learned Advocate for the appellant that had it been a fact that the portion covered by Ex. D. 1 was inserted in the same session as is sought to be stated by P.W. 2, there would not have been any impediment whatsoever in writing that portion below the stamped receipt and/or/altogether a different receipt itself. The explanation given by Sri Ramaswamy Iyengar, according to the learned counsel for the appellant, in this behalf, is not acceptable. Marshalling his submissions on these lines, it was contended by the learned counsel for the appellant that there was clearly an attempt at forging the portion of the contents covered by Ex. D. 1, and signature on the stamp. Sri Karanth is right when he contended that the portion covered by Ex. D. 1 is inserted later, that is so, because, P.W. 2-B. Ramaswamy Iyengar has admitted in the course of his examination that the same was inserted later. However, the question as to whether the same was inserted in the same session that is to say, when all the three persons viz., plaintiff, defendant-1 and P.W. 2 -Ramaswamy Iyengar were present during the period when the portion was written or whether the portion covered by Ex. D. 1 was written at a later point of time during the absence of defendant-1, is a separate point for consideration. It is also true that the ink used for signature at Ex. P. 1(a) looks little different from the ink used for the signature at Ex. P. 1(b). However, we may add here that it is also possible that the different impressions apparent on the face of Ex. P. 1 were on account of the fact that the signature at Ex. P. 1(a) was done with more pressure than the signature at Ex. P. 1(b). At the same time, it is difficult to say that Ex. P. 1(a) and P. 1(b) look strikingly different. However, one thing is very clear that the portion covered by Ex. D. 1 has made the space above the stamped receipt a little congested. It is also true that the signature of B. Ramaswamy Iyengar alone is taken under the caption ''witnesses''. However, it would be hazardous to reach a positive conclusion on the basis of these circumstances alone that there was any attempt either at forgery or at fraud on the part of the plaintiff. However, we are indeed of the view that at any rate at this juncture it is not necessary to record a finding in this behalf since we have already reached a conclusion that even without the aid of Ex. D. 1, an oral agreement as pleaded by the plaintiff is proved as held earlier, and, if necessary, we may advert to this aspect at a later stage.

If that be so, it will have to be next seen as to whether the agreement in writing dated 1-10-1981 at Ex. P. 6, can be said to have been established by acceptable evidence. The trial court has held that the execution of Ex. P. 6 is proved. The reasons reflected in the judgment of the trial court are there as they are. However, the learned counsel for the appellant has invited our attention to several circumstances to contend that Ex. P. 6 cannot be said to have been proved at all.

Before adverting to the various submissions advanced by the learned counsel for the appellant, it would be indeed convenient to, briefly, indicate as to the evidence adduced by the plaintiff to prove Ex. P. 6. In the first place, Ex. P. 6 is sought to be proved by oral evidence. Support is also taken to prove the same from the corroborative circumstances. Support is also sought from the background which existed immediately next before the execution of Ex. P. 6. Some of the admissions elicited in the course of the cross-examination of D.W. 1 are also pressed into service in support of the same. Further, the circumstances relating to the construction of the incompleted house were also relied on, on behalf of the plaintiff, to show that the agreement as stated in Ex. P. 6 did come into being on 1-10-1981. Further, plaintiff has also relied on the fact that he had in his possession certain documents which would not have been with him had the agreement not been executed by defendant-1 in his favour. He has also relied upon the other circumstances which are referred to herein below. At this juncture, it would be indeed convenient to make a brief reference to some of the recitals reflected in Ex. P. 6. The date of the agreement is 1-10-1981. In Clause III of the said agreement, it is mentioned that on account of the financial stringency and in view of the inability to discharge the mortgage debt due to the Government of Karnataka and also to the Bharath Co-operative Society Limited (presumably the Bharath Co-operative Bank-Defendant-3) he thought it fit to alienate the property. Then again, in Clause IV there is a reference to the total consideration amount fixed as the sale price. At Clause VI, there is a mention as regards an advance amount of Rs. 41,000/-having been paid on 3-9-1981. Under Clause VII, there is a specific recital to the effect that the vendor has discharged the mortgage debt due to the said society out of the amount of Rs. 41,000/-. There is also a recital to the effect that the defendant-1 (Vendor) has arranged with the department to obtain no objection letter to alienate the property. There is also a mention about the amount of Rs. 4,000/- having been received on the same day on which Ex. P. 6 came into being. Then again, there is also a mention in Clause IX that the vendor had discharged his debt due to the said Bharath Co-operative Society. There are also other recitals and it is not necessary at this stage to refer to all those recitals. It is necessary to note here that apart from the fact that the document purports to contain the signatures of plaintiff and defendant-1 at the end of the document, it contains the signatures of the plaintiff and defendant-1 at the bottom of every page of Ex. P. 6. As pointed out earlier, defendant-1, in so far as Ex. P. 6 is concerned, has taken a specific plea in his written statement that the signatures on Ex. P. 6 are not his signatures. Plaintiff, however, in order to show that the signatures on Ex. P. 6 are those of defendant-1 only has examined two witnesses, viz., P.W. 3, B. N. Ninge Gowda and P.W. 4, Chandregowda apart from relying on his own evidence. P.W. 3-Ningegowda has stated in his evidence, among other things, that he knew the 1st defendant in the suit and he knew about the transactions and he had attested the agreement at Ex. P. 6. It is also elicited in the course of his evidence that defendant-1 had brought the typewritten document at Ex. P. 6 and the plaintiff paid an amount of Rs. 4000/- to defendant-1 in his presence. He has also stated that defendant-1 received an amount of Rs. 4,000/- who put the signature to each page of the document at Ex. P. 6. He has also spoken to the other details. P.W. 4-Chandregowda has also, among other things, stated in the course of his evidence that he was present when Ex. P. 6 was executed and he knew about the plaintiff having given the amount of Rs. 4,000/- as also the plaintiff and defendant-1 affixing their signatures on Ex. P. 6. Plaintiff has also spoken to this aspect in the course of his evidence.

Sri Karanth, the learned counsel for the appellant, has invited our attention to the various circumstances to contend that the execution of Ex. P. 6 is highly improbable and Ex. P. 6 is a fabricated document. In the first place, it was contended by the learned counsel that the admitted signatures of defendant-1 like the signature on Ex. P. Kb) and the signatures in the written statement are strikingly different from the signatures found on Ex. P. 6. It was also contended by the learned counsel that the evidence relating to the stamp paper and its alteration within 15 to 20 minutes is improbable. The learned counsel also contended that the attesting witnesses to the document viz., P.W. 3 and P. 4 are strangers to defendant-1 and yet they are stated to have attested the documents at Ex. P. 6 at the instance of defendant-1. It was also contended by the learned counsel that if really the agreement at Ex. P. 6 came into being, under the circumstances stated by the plaintiff in the course of his evidence, it would be natural to expect the plaintiff to have taken at least one or two witnesses to attest the document at Ex. P. 6. It was next contended by the learned counsel for the appellant that the fact that the agreement is said to have been executed in the shop premises of the plaintiff itself renders the whole transaction improbable and the document if at all would have been executed in the office of P.W. 2-Ramaswamy Iyengar, having regard to the fact that it is he who is said to have used his good office to bring into being the agreement between the parties. Submission was also made to the effect that the description of the property reflected in Ex. P. 6 does not tally with the description of the property available from the other evidence on record, particularly in the context of Ex. P. 9, to wit, the possession certificate dated 6-2-1975. The learned counsel also took us to the cross-examination of the witnesses particularly P.W. 3 and P.W. 4 to show that their evidence is not satisfactory.

Before considering the submissions made by Sri Karanth, in detail, it would be indeed convenient to see as to whether the version given by the plaintiff is supported by any corroborative circumstances. In this connection, it is necessary to remember that often time it becomes difficult to place implicit trust or faith in the oral evidence of a witness, and it is always safe to depend upon the preponderance of probabilities flowing from unimpeachable circumstances. Bearing that in mind, it would be indeed convenient to see in the first instance as to whether the version given by the plaintiff with reference to the execution of the document at Ex. P. 6 is corroborated by circumstantial evidence. The various circumstances pressed into service by the plaintiff in support of his submission to seek corroboration to the recitals in Ex. P. 6, are mentioned in brief earlier. However, at this juncture, it would be indeed proper and in fitness of things to refer to those circumstances, which, according to the plaintiff, lend corroboration to the recitals reflected in Ex. P. 6. In the first place, the plaintiff has relied on the circumstance that defendant-1 was in dire pecuniary difficulty at the time when Ex. P. 6 came into existence. A reference is already made to the recitals reflected in Ex. D. 6 that is to say, the petition which defendant-1 had submitted to his superiors for permission. His pecuniary possession is admitted by him in the said document. Since the document is already referred to earlier, while considering point Nos. 1 and 2, it is not necessary to repeat the same here again. It will suffice if it is stated that the recitals in Ex. D. 6 would unmistakably go to show that plaintiffs financial position was precarious and that during the month of June-July 1981 his financial condition was highly critical. The matter does not rest there. It is also necessary to notice that it is elicited in the evidence of defendant-1 that on account of the acute pecuniary difficulty in which he was placed, even his children, who were school-going, had to discontinue their studies. In this connection, he has stated in the course of his deposition at para 58 that in the year 1980-81 all his children left the school on account of his financial difficulties. The evidence referred to immediately hereinabove, would indeed go to show that during the time when Ex. P. 6 came into existence defendant-1 was in a tight financial position. This aspect would indeed lend corroboration to the recital in Ex. P. 6 to the effect that defendant-1 was in a tight financial position.

Plaintiff has also sought corroboration to the fact that the defendant had made arrangement to seek the permission from the department to alienate the suit property. In this connection, again reliance is placed on Ex. D. 6, as indicated earlier. Ex. D. 6 is a petition or a submission made by defendant-1 seeking permission from his superior authorities. It is necessary to remember that Ex. P. 1 and thereafter Ex. P. 6 came almost close on the heels of Ex. P. 9. There is a clear recital in Ex. D. 6 to the effect that he had decided to alienate the property on account of his acute financial difficulty. It is therefore, clear that this circumstance also corroborates the recital in the document at Ex. P. 6 that defendant-1 had made arrangement to seek the necessary permission from the authorities concerned. It becomes difficult to understand as to how the plaintiff by himself would have known this circumstance except in the context of the said recital in Ex. P. 6 being genuine. However, it appears that an attempt is made by defendant-1 in the course of his examination-in-chief to show that plaintiff had occasion to know about this circumstance also. It would be indeed interesting to refer to this aspect elicited in the course of the evidence of the defendant-1. This aspect has been touched upon by the defendant in the course of the evidence at para 40. Among other things, it is elicited that Ex. D. 6 is the letter written by him and submitted to his superiors of the department and its contents are true and correct. Defendant-1 has chosen to add that this fact was known to the plaintiff. Thereafter, a question was put to defendant-1 by his counsel. The question is as under: "How did the plaintiff come to know about this fact?" Defendant-1 proceeded to answer the said question as under:

"One or two days after Ex. D. 6 was submitted to my department, plaintiff had come to the P. S. and on seeing me in a depressed mood, he had asked me about the same and at that time I had informed him about my writing to the department seeking permission to sell the suit property to others, while telling him that I had committed a mistake in seeking such permission being under financial pressure. Thus the plaintiff came to know of this fact from my mouth."

At this juncture, it will suffice if it is noted that this version has come out for the first time in the course of the evidence and such a version was not given at any earlier point of time, that is to say, either in the course of the written statement or at the time when plaintiff was being examined or even earlier when defendant-1 was required to issue the reply to the notice given by the plaintiff. We would like to make it clear here that this circumstance will be considered along with the other circumstances in great detail, when we consider separately the question as to whether it is defendant-1 who completed the construction of the building or whether it was the plaintiff who constructed the building. At this juncture, it will suffice if we refer to the fact that this version, in the way and manner as pointed out hereinabove, in the course of deposition of defendant-1, saw the light of the day for the first time during his evidence.

This itself should put the court on guard to accept such a version. Plaintiff has also sought corroboration from another important circumstance, viz., the custody of certain documents. Some of the documents which ought to be in the custody of defendant-1 are shown to have been in the custody of the plaintiff in the context of the agreement to sell as already referred to earlier while discussing points 1 and 2. In this connection, by way of reiteration a reference can be made to Ex. P2, P3, P4, P5, P7, P8, P9, P10, P86, P87 and P127. The description of these documents is already referred to earlier. These documents as a matter of course ought to have been in the custody of defendant-1. However, they are found to be in the possession of the plaintiff. In this connection, it is necessary to see as to what defendant-1 has got to say with reference to the same. Defendant-1 has admitted that these different documents pertain to the suit property itself. Among other things, he has stated in para 43 of his deposition that all these documents are in respect of the suit property and they have all been retained by the plaintiff without delivering the same to him. He has also chosen to say in the course of his deposition as to under what circumstances he got himself acquainted with the plaintiff and under what circumstances he had asked defendant-1 to pay the different charges payable by him. As pointed out earlier these aspects would indeed assume significance and a detailed discussion is indeed required to be had while considering the next question viz., the question as to whether it is the plaintiff or defendant-1 who completed the construction of the building in question. In that view of the matter, it is not necessary at this stage to have a detailed discussion on this aspect. However, it will suffice here to note that it is for the first time that defendant has come out with a version as to the circumstances under which the plaintiff had come into possession of these documents referred to immediately hereinabove. In other words, this aspect is mentioned for the first time by defendant-1 in the course of his evidence and the same did not find a place at any time earlier. In that view of the matter, the credibility that could have been attached to the evidence of defendant-1 in this behalf is lost. Hence, the fact that the plaintiff was in possession of these documents which ought to have been with defendant-1 would also corroborate the recital in the document at Ex. P. 6, the relevant clauses of which are already referred to earlier.

Plaintiff has also tried to seek corroboration from several other circumstances including the evidence of the different witnesses examined on his behalf in support of his contention that the document at Ex. P. 6 was executed as alleged by him. In other words, the circumstance which would indicate, according to the plaintiff, that it was plaintiff who completed the construction of the house, would, by themselves provide very important circumstance which would lend great credibility to the execution of the agreement at Ex. P. 6. At this juncture, it will suffice if it is stated that plaintiff has examined several witnesses like P.W. 5-Yellappa, Watchman, P.W. 6-Kuppuswamy, a Mason for the construction of the house, P.W. 7-Narayana who is said to have supplied the materials like, jelly, boulders, sized stones, etc., P.W. 8-Chinnappa who is said to have prepared the door shutters, door frames, window shutters, etc., P.W. 9-N. Jayaramaiah, who had done the plumbing work, P.W. 10-Chandru, who is said to have done the mosaic flooring and P.W. 11-C. Subramani who is said to have done the stone blasting work and P.W. 12-who is said to have done the electric work. At this stage, it is not necessary to go into the details of evidence of these witnesses and the comments in that behalf made by the learned counsel for the appellant. This evidence is only mentioned with reference to the submission of the Advocate for the plaintiff that the fact that there is overwhelming evidence to show that it is the plaintiff who had completed the construction of the building itself would render probable the execution of the document at Ex. P. 6. The details of the evidence will be considered at a later stage while considering the next point. The learned Advocate for the plaintiff has also relied on the circumstances that the amount payable to the Society was discharged in the month of September 1981 or so. In this connection, the learned Advocate has relied on the admission of D.W. 1 in the course of his deposition. In para 32 of his deposition, defendant-1 has stated that he had taken a loan of Rs. 1500A from defendant-3 in 1978 and defendant-3 did not file any suit against him for the recovery of the said loan and he discharged the said loan in September 1981 out of the sale proceeds of his 30 sheep at the sheep market in Bangalore. Pressing into service these submissions, it was contended by the learned Advocate for the plaintiff that these circumstances would positively lead to the conclusion that the agreement dated 1-10-1981 in favour of the plaintiff is proved.

The submission made by Sri Karanth, learned counsel for the appellant-defendant No. 1, will have to be considered in the context of the circumstances referred to hereinabove.

It is true that the document, that is to say, Ex. P. 6 is said to have been executed at the shop of the plaintiff. It is also seen that plaintiff has stated that D.W. 1 came to his shop and later sent his worker to purchase the stamp paper for writing the agreement and when defendant No. 1 (D.W. 1) noticed that the name of Ramachandra was written, both he (plaintiff) and defendant No. 1 went to the stamp vendor to write the name of the defendant No. 1 and the stamp vendor agreed to make the correction and made the correction in the stamp paper as also in the Register. However, we are unable to agree with the submissions made by the learned Advocate Sri Karanth that there is anything unnatural in it. The conduct Of different persons at a given point of time depends upon the exigency of the situation. It is necessary to remember here that defendant No. 1 was in dire need of some amount. In that context if things had transpired in the way and manner as elicited in the course of cross-examination of P.W. 1 we do not find anything improbable in that version.

Similarly, we are unable to agree with the submission made by the learned counsel for the appellant that the fact that Ex. P. 6 was executed in the shop of plaintiff is an unnatural circumstance. It has come in the evidence of P.W. 1 (plaintiff) that Ex. P. 1 was got drafted by defendant No. 1 through Sri R. G. Patil who was also known by then to the plaintiff. If in that context plaintiff reposed trust in the defendant and the document was agreed to be executed as got typed out by defendant No. 1, there is nothing unnatural in it. Instances are not uncommon when people repose lot of confidence in human goodness. Viewed from this angle the trust reposed by the plaintiff in the defendant in connection with the execution of Ex. P. 6 cannot be dubbed as an unnatural circumstance.

Similarly, the fact that the plaintiff did not keep any one present in the shop for the purpose of attesting the document also cannot be made much of. It is necessary to notice here that it is elicited in the course of cross-examination of P.W. 3 that in fact plaintiff did ask defendant No. 1 to get the attesting witnesses. However, it has also come in the evidence of P.W. 3 that defendant replied saying that since P.Ws 3 and 4 were present there they could be taken as the attesting witnesses. Thus, from the above evidence it is clear that the shop of plaintiff was visited by one person or the other and ordinarily people would be available. Further, the evidence on record would go to show that P.W. 3 and P.W. 4 were visiting the shop of plaintiff quite often. In the context of these circumstances the fact that there were no pre-arranged witnesses cannot be described as a circumstance which is unnatural.

It is also true that the description of the property in the document at Ex. P. 6 apparently does not appear to tally with the description of the property described in Ex. P. 9. However, it is certainly possible to explain away the apparent discrepancy reflected in the two documents with reference to the description of the property in question.

It is seen that in the document at Ex. P. 6 the boundaries described are as under: East by: Road,

West by: property,

North by: vacant site, and

South by: Existing house of Sri Kakade.

Further, the measurement given in Ex. P. 6 with reference to the property is East to West 40'' and North to South 60''. In the document at Ex. P. 9 dated 6-2-1975 the description of the property given is as under:

North: Site No. 487

South: Site No. 489

East: Road

West: Site No. 475

Further, the measurement given is East to West 60'' and North to South 40''. It is significant to note here that Ex. P. 9 is dated 6-2-1975 and Ex. P. 6 is dated 1-10-1981. Six long years intervened between them. Ex. P. 9 was executed before Ex. P. 6 came into being. Under these circumstances, it is indeed reasonable to presume that much water must have flown below the bridge and the surrounding sites referred to in Ex. P. 9 must have been allotted to certain private individuals. Looked at from this point of view it is certainly possible to explain away the apparent discrepancy. It is significant to note here that the boundary with reference to East remains the same, viz., the road both in Ex. P. 9 as also in Ex. P. 6. Further, it is also necessary to notice here that this aspect has not been put to the plaintiff when he was in the witness box so as to enable him to explain away the discrepancy if any. Further, there is also no suggestion by the defendant No. 1 either in the course of the cross-examination of P.W. 1 or for that matter in the course of his own evidence that the site referred to in Ex. P. 6 is different from the one described in Ex. P. 9. Further, in so far as the apparent discrepancy with reference to the measurement (dimension) is concerned it is seen that the measurement given as 60'' North to South in Ex. P. 6 is shown to be the measurement for East to West in Ex. P. 9 and vice versa. The same logic also holds good in this behalf. Further from the records at Ex. P. 139 and also Ex. P. 2 the correctness of which is not disputed it is possible that a mistake might have crept in, in Ex. P. 9 itself. Taking into consideration all these circumstances we are unable to agree with the submission made by Sri Karanth, learned counsel for the appellant, that the description of the property in Ex. P. 6 is not correct.

In the same way the fact that P.W. 3, B. N. Ninge Gowda, or P.W. 4, Channegowda, had casually come there on that day is also not a circumstance which could be made much off. It has come in the evidence of these witnesses that they were visiting the shop of the plaintiff quite often. One is an Engineer and another is doing the contract work. These witnesses were cross-examined in detail. The details elicited in the course of cross-examination of these witnesses which are consistent with facts would indeed lend credibility to their evidence. In this connection the answer elicited in the course of cross-examination of the witness, viz., P.W. 3-Ningegowda, at para No. 4 therein can be perused. It is elicited that he remembers that the document was executed on 1-10-1981 because the following day happened to be Gandhi Jayanthi. Further, elsewhere in the course of his cross-examination it is elicited as under:

"After the defendant No. 1 came to the shop of the plaintiff on the evening of 1.10.1981 along with a document, we all had a cup of coffee and then it was learnt by me that the document brought by the defendant No. 1 is an agreement for sale and thereafter the defendant No. 1 had signed that document. Then the first defendant gave that document to the plaintiff, who read its contents and subscribed his signatures to it. The defendant No. 1 might have subscribed 8 to 10 signatures on that day. I again say that the defendant No. 1 subscribed his signatures numbering about 18 to 20 on both the documents."

Further, in the course of his cross-examination it is also elicited that he as usual went to the shop of the plaintiff on that day also. Then again it is elicited in the course of his cross-examination that Ex. P. 6 document consisted of four or five sheets and all the five sheets were stamp papers. It is further elicited that plaintiff asked defendant No. 1 to get some attestors to attest the agreement and defendant No. 1 told the plaintiff that since P.W. 3 and P.W. 4 were present in the shop, they could attest the agreement. At this juncture it is necessary to note that Ex. P. 6 does not contain five stamp papers as such. It is noticed that only two sheets are stamped papers as such and the rest of the contents are written on ordinary bond papers. However, this circumstance by itself will not affect the evidence of P.W. 3. At the same time lot of details spoken to by P.W. 3 Ninge Gowda in the course of his cross-examination which are broadly true would in our opinion lend credibility to his evidence. It is also relevant to note here that P.W. 3 is an Assistant Engineer who had put in nearly five years of service in B.W.S.S.B. on the date on which Ex. P. 6 was executed. Under these circumstances we are indeed of the view that the evidence of P.W. 3-Ninge Gowda is indeed believable and acceptable.

In the same way, P.W. 4-Chandregowda is also cross-examined in detail and some of the answers elicited in the course of his cross-examination also would lend credibility to his evidence. For instance, in the course of in the cross-examination of this witness, among other things it is elicited that the occasion for introducing defendant No. 1-Dase Gowda to him was that plaintiff stated to him that he had purchased the property of defendant No. 1 and that he had purchased the property of defendant No. 1 in September 1981. Then again, elsewhere in the course of his cross-examination it is elicited that the reason for the plaintiff to read the document Ex. P. 6 loudly was that it would be heard by all of them who were present there. Further it is elicited that since plaintiffs brother-in-law went away from the shop of the plaintiff while the transaction was still going on, he did not attest the document Ex. P. 6 and plaintiff did not ask his brother-in-law to be present till the completion of the transaction covered under Ex. P. 6 and that the plaintiffs brother-in-law went away from the wholesale shop to his another retail shop run under the name and style of "Ashwini Wine Shop" situated near about the wholesale shop of the plaintiff. These details in our view are indeed such which cannot be easily spoken to if really the witness was not present at the time when Ex. P. 6 was executed.

Under these circumstances, we are of the view that the evidence of this witness also does not suffer from any infirmity. Hence we have no hesitation to hold that the evidence of these two witnesses is acceptable. Further the trial court which had occasion to observe the demeanour of these witnesses has also not chosen to find fault with them. Under these circumstances we have no hesitation to hold that their evidence is acceptable.

The lower court has held in para 24 of its Judgment that the signatures of defendant No. 1 on Ex. P. 6 resemble the admitted signatures of defendant No. 1. We are also not inclined to reach a different conclusion in this behalf though according to learned counsel for the appellant they appear to be strikingly different. Further the recitals in the document at Ex. P. 6 are corroborated by the circumstantial evidence referred to in detail earlier. Further, if really defendant No. 1 was confident that the signatures at Ex. P. 6 were not his signatures nothing prevented him from making a request to the trial court to get the same examined by a handwriting expert. Nothing of this sort also appears to have been done by defendant No. 1. Under these circumstances we are indeed of the view that there will not be any difficulty in agreeing with the finding of the trial court that the execution of Ex. P. 6 has been proved by the plaintiff.

When once it is held that Ex. P. 6 is proved by acceptable evidence, the recitals reflected therein would indeed assume significance and would bind the defendant unless, of course, they are explained away on any reasonable basis. As pointed out earlier, the recitals in Ex. P. 6 would go to show that there was an oral agreement in the first instance and that the same was followed by the receipt of consideration of Rs. 41,000/- and an execution of receipt in that behalf on 3-9-1981 covering part payment of the sale price. It is also disclosed that the defendant No. 1 had undertaken to take steps in the process of executing the sale deed. It would also go to show that plaintiff was put in possession of the property at the time when Ex. P. 1 was executed. As pointed out earlier these recitals are corroborated by cogent circumstantial evidence also.

We may also point out here that when once it is held that Ex. P. 6 is proved by acceptable evidence the recitals therein particularly with reference to Ex. P. 1 would take away the teeth of the submission made by Sri Karanth, learned counsel appearing for the appellant, that the portion marked as Ex. D. 1 in Ex. P. 1 was a subsequent insertion, as also of the submission that the signature on the stamp at Ex. P. 1 was not that of defendant No. 1.

For the reasons stated hereinabove, we have no hesitation to answer Point Nos. 1 to 3 in the affirmative.

Point No. 4:

This point relates to the question as to whether it is the plaintiff who completed the construction or whether it was defendant No. 1 who completed the construction. It is an admitted fact that when the agreement for sale took place the house was in an incomplete stage. This is clear from the admission of defendant No. 1 in the course of his evidence also, wherein he has stated that he had stopped construction in the month of August, 1980 and that he had started further construction only in the month of June or July, 1981. The plaintiff has alleged that it is he who completed the construction. The plaintiff to prove his case in this behalf has relied both on oral and documentary evidence. In the first place he has relied on his own evidence as also the evidence of witnesses examined on his behalf, i.e. P.W. 5 to P.W. 12 in particular. He has also relied on Ex. D. 3, the modified plan approved by B.D.A. on 26-9-1981. Reliance is also placed on Ex. P. 158 the Challan for having paid the property tax for the period from 1-4-1982 to 31-3-1983. He has also relied on Ex. P. 3, the licence dated 26-9-1981. He has also relied on the extracts of the accounts at Exs. P. 133 and P. 134. The extract from the Accounts from Corporation Bank showing the amount drawn by him for the purpose of construction is at Ex. P. 135. The balance sheet filed by him before the Income Tax authorities for the financial years 1981-82 and accounting year 1982-83 is at Ex. P. 136; his income tax assessment for the year 1982-83 is at Ex. P. 138; apart from the above documents, the other documents relating to the plaintiff having paid the tax, road cutting charges, etc., are referred to earlier in detail. The plaintiff has also relied on other circumstances which would be referred to at appropriate stages hereafter.

The defendant No. 1 on the other hand has relied on his own evidence as also the evidence of witnesses examined on his behalf, viz., D.W. 2-Kariyappa, D.W. 3-K.T. Thimmaiah, D.W. 4-Ramanna, D.W. 5-Marilingegowda and D.W. 6-D.S. Tarakaram Setty. Exs. D. 1 to D. 71 are also relied on by him.

Sri Karanth, learned counsel for the appellant, as pointed out earlier had complained that the trial court has not chosen to appreciate the evidence of the different witnesses examined in this case and that it has only chosen to reach its conclusion on a few documents.

It is true that the trial court has not referred in detail to the evidence of different witnesses examined on behalf of the plaintiff and defendant No. 1. However, we are of the view that if the conclusion reached by the trial court can be supported on a reappraisal of the evidence by this court, the finding given by the trial court in this behalf will have to be maintained. It is seen that the plaintiff as stated earlier has examined a number of witnesses. It would be indeed refreshing to briefly refer to the evidence of different witnesses examined on behalf of the plaintiff.

P.W. 5-Yellappa is a Watchman. He has spoken to the nature of the work entrusted to him and he has also spoken as regards the wages having been given to him by the plaintiff in that behalf, and in witness thereof he is said to have issued receipts at Exs. 88 to 107.

P.W. 6-Kuppuswamy is a Maistry who is said to have assisted the plaintiff in the construction of the house. This witness has given the details of the construction at para 1 of his deposition. He has stated that he did the work with the assistance of his labourers. He has also referred to the receipts at Exs. P. 57 to P. 84 which are said to have been issued by him.

P.W. 7-Narayana is a witness who is examined by the plaintiff. He is said to have supplied the materials like jelly, boulders, sized stones, sand and bricks for the construction of the work. He had stated that he executed the work worth Rs. 21,600/-. He has also spoken as regards the receipts issued in this behalf at Exs. P. 36 to P. 56.

P.W. 8-Chinnappa is another witness examined by the plaintiff. He is said to have prepared the door shutters, door frames, window shutters, window frames, ventilators, wardrobes, almirahs and window pelmet to the house of the plaintiff. The details in this behalf can be seen at para 1 of his deposition. According to him he has received in all an advance of Rs. 15,100/- from the plaintiff and he issued receipts at Exs. P. 111 to P. 119.

P.W. 9-N. Jayaramaiah is a witness who is said to have done the plumbing work for P.W. 1 in November or December 1981. He has spoken to the details in para 1 of his deposition. He has also spoken as regards having issued the receipt at Ex. P. 90.

P.W. 10-Chandra has spoken as regards his having done the mosaic flooring work in January 1982. The details in this behalf are spoken by him in para 1 of his deposition. He has also spoken as regards his having issued Exs. P. 33 to P. 35.

56(A). P.W. 11-C. Subramani is a witness examined by the plaintiff who is said to have done the stone dressing work. He has spoken as regards having issued the receipts Exs. P. 92 to 99 and P. 108 and 109. He is said to have received a sum of Rs. 9,182 in all, covered by the said receipts.

P.W. 12-Raghupathy is a witness who is said to have done the electrification work and painting work of the house in question. He has given the details of the work done by him in para 1 of his deposition with reference to the electrification. He has also stated in the course of his deposition at para 2 therein as regards the details of the painting work done by him. He is said to have received a sum of Rs. 10,746/- in respect of the painting work done by him and Rs. 20,370/- in respect of the work relating to electrification. Ex. P. 85 is the bill in connection with the electrification work done by him. The details are there as reflected in Ex. P. 85. He has also spoken as regards having issued the receipts for a sum of Rs. 10,746/- as per Ex. P. 91 in respect of the painting work said to have been done by him.

Defendant No. 1 on the other hand has examined himself as D.W. 1. He has also examined D.W. 2-Kariyappa who has spoken about the joint family income of defendant No. 1. He has also spoken as regards the possession of cows, calves and sheep in the joint family of defendant No. 1. He has also spoken about defendant No. 1 having brought cows and sheeps for sale. This can be seen from para 1 of his deposition.

D.W. 3-Thimmaiah has spoken to the joint family income of defendant No. 1. He has also spoken about the family owning the buffaloes and also the family rearing silk worms. He has also spoken as regards his having attended Gruhapravesham performed by defendant No. 1 on 26-3-1982.

D.W. 4-Ramanna, the younger brother of defendant No. 1 has spoken about the various aspects relating to the joint family and other allied matters.

D.W. 5-Marilingegowda who is admittedly a relative of D.W. 1 has spoken as having lent an amount of Rs. 5,000/- to defendant No. 1 during the period 1980-81.

D.W. 6-Tarakaram Setty has spoken about his having lent a sum of Rs. 6,000/- during the year 1979-80 and an amount of Rs. 2,000/- out of it having been repaid to him during the year 1985-86.

Sri Karanth, learned counsel for the appellant, has contended that the evidence adduced on behalf of the plaintiff is not at all satisfactory with reference to the question relating to the construction of the house in question. Among other things it is pointed out that drawal of the amount by the plaintiff reflected in Ex. P. 135 relating to the construction of the house is itself rendered untrue. Dilating on this aspect, the learned counsel pointed that out the first part of the entries in the said document at Ex. P. 135 pertaining to the cash credit transaction and several others do not relate to the drawals by him and the other pertains to the current account in which other than the entries from 22-9-1981 to 26-1-1982 are the amounts not drawn by him at all. The learned counsel also submitted to the court that the different receipts said to have been executed by different witnesses examined on behalf of the plaintiff appear to be written at one time and in comparison with the cash bills or invoices of his shop look fresh. It is also contended that all these receipts would indeed give an impression that all of them are written at one time. This according to the learned counsel for the appellant would indeed go to show that they were all concocted by the plaintiff for the purpose of the case. It was also contended that these receipts would go to show that they were not out of an account book maintained by the plaintiff and they were the receipts obtained by him after preparing the same for the purpose of the case. With reference to Exs. P. 31 to P. 35 it was submitted that they belong to one type and they pertain to months of January and February. While receipts from Exs. P. 57 to P. 84 are of another type including those for the months of January and February and that the position is the same with reference to Exs. P. 36 to P. 42. The learned counsel also submitted that inaction on the part of the plaintiff from the date of alleged trespass by defendant No. 1 that is to say from 25-3-1982 till the period when he issued notice at Ex. P. 129 would not accord with the course of common conduct or human nature. Dilating on this aspect the learned counsel submitted to the court that if really defendant No. 1 had forcibly occupied the premises in question as alleged by the plaintiff, that too, after the plaintiff had spent enormous amount and had thought in terms of performing Gruhapravesham in the second week of Feb. 1982, it is natural to presume that plaintiff would have taken immediate action with reference to the same. It was contended that the inherent improbability in this behalf would render false the allegation that there was unauthorised occupation by defendant No. 1 of the premises in question on 25-3-1982. The learned counsel submitted that this circumstance by itself would go to show that plaintiff was never put in possession having regard to the fact that admittedly on the date on which the suit was filed the defendant No. 1 was in possession of the property in question. Connecting these several submissions together the learned counsel contended that the evidence adduced on behalf of the plaintiff is highly improbable and if the evidence adduced by P.W. 1 and his witnesses are appreciated, in the context of the totality of the evidence it would indicate that the construction of the house was done by defendant No. 1 only and not by plaintiff. 64. The submissions made by the learned counsel for the appellant will have to be appreciated from a proper perspective and in the background of the circumstances referred to earlier, as also in the context of the view taken by this court while discussing Point Nos. 1 to 3. We have already taken a view particularly with reference to recitals in Ex. P. 6 as also with reference to the other circumstances alluded to in the context of consideration of the said document that plaintiff was entrusted with possession of the property as it stood at the time when the agreement in question took place. It is also seen that defendant No. 1 had already applied for permission to alienate the property. It is further seen that the financial position of defendant No. 1 was precarious according to his own admission. It is further seen that the evidence of different witnesses is oriented with reference to the question of the financial capacity of defendant No. 1 to construct the building. As pointed out earlier, D.W. 5, Marilin-gegowda in particular has spoken as he having advanced an amount of Rs. 5,000/- during the year 1980-81 and D.W. 6, Tarakaram Setty having lent Rs. 6,000/- in the year 1979-80. However, it is significant to note that not a single witness is examined to speak that he has done the work relating to the completion of the construction of the house. At this juncture it would be relevant to see as to how defendant No. 1 has come out to disclose his, wherewithal at the relevant point of time. His evidence discloses that he had about Rs. 12,000/- in 1976-77 for the purpose of construction of the house which was intended by him. It is further seen from his evidence that an amount of Rs. 27,000/-was sanctioned to him by the Department. It is also seen that an amount of Rs. 15,000/- to Rs. 18,000/- was realised by the sale of cows. His evidence also discloses that an amount of Rs. 15,000/-was realised by him from the third defendant bank. He has also spoken as regards having borrowed an amount of Rs. 5,000/- to Rs. 8,000/- from his friends, an amount of Rs. 4,000/- from his younger brother, an amount of Rs. 10,000/- from Dodda Haide Gowda who is his brother-in-law. He has also stated that an amount of Rs. 8,000/- was realised from his father, an amount of Rs. 5,000/- was realised from Marilingegowda, an amount of Rs. 4,000/- from Madhu, Rs. 15,000/- from the sale of part of the jewels of his wife, Rs. 6,500/- by the sale of scooter, Rs. 1,400/- by the sale of gold rings, Rs. 2,000/- by the sale of two-in-one, Rs. 10,000/- as loan from R.G. Patil, Rs. 6,500/- as loan from Srinivasa of Basavanagudi, Rs. 5,000/- from Tarakaram Setty and Rs. 42,000/- to 43,000/- by sale of gold. The total amount thus disclosed would be in the neighbourhood of Rs. 2,24,000/- . At this juncture, it would be indeed worthwhile to see as to whether the amount disclosed by the first defendant as having been within his reach can be accepted in the facts and circumstances of this case. Some of the circumstances which would throw light on the financial position in which defendant No. 1 was placed have already been referred to earlier. However, by way of reiteration in the context of this aspect it would be indeed necessary to recall those circumstances over and again. As pointed out earlier defendant No. 1 has described his own pecuniary position in Ex. D. 6 which is a petition or a submission given by him to his superior authorities in the context of the permission to dispose of the suit property. He has stated in unequivocal terms on 2-9-1981 that his financial position is very bad. It is also seen that by that time defendant No. 1 had exhausted the amount which he had taken from the Bank as also from the Government, apart from the amount of Rs. 12,000/- said to have been standing in his accounts. Further it is in the evidence of 1st defendant himself that he stopped further construction in the month of August 1980. We have already referred to this aspect earlier. It is his version that he had started further construction of the house in the month of June or July, 1981. It is indeed significant to note at this juncture that in the course of his deposition, defendant No. 1 has stated that during the month of July 1981 his financial position was highly critical. Apart from this as pointed out earlier he has also stated in the course of his deposition that in the year 1980-81 all his children left school because of his financial difficulties. The mode of financial resources reflected in the course of the evidence of defendant No. 1 will have to be appreciated in the context of this circumstance. If really defendant No. 1 had potential sources from which he could materialise the amount required as indicated by him in the course of his evidence and in the course of evidence of witnesses examined by him it is natural to expect that he would not have stopped the construction during the period from August 1980 to July 1981 as indicated above. Further defendant No. 1 has not come out with any convincing evidences to corroborate the same. It is significant to note here as pointed out earlier that defendant No. 1 would like the court to believe that he had spent more than Rs. 2 lakhs for completing the construction of the house. However, it is necessary to see as to what he had stated before the Income Tax authorities in this behalf. Ex. P. 154 is the enclosure appended to the return for the year ending March 1982. Ex. P. 154 reads thus:

"To

The III Income-Tax Officer,

Circle -1, Bangalore.

Sir,

Sub: Furnishing of Return of Income for the Y.E. 31-3-1982 relevant to the assessment year 82-83.

Please find herein enclosed the return of income for the year ending 31-3-1982 relevant to the assessment year 1982-83 along with the statement of income.

I have constructed a house property which has been valued at Rs. 65,000/- by the Bangalore Development Authority. The source for the same has been explained in detail which may please be looked into.

I am submitting herewith the copies of documents shown below for your kind perusal.

Possession Certificate dated 6-2-1975.

Photostat copy of the tax paid receipt.

Photostat copy of the B.D.A. assessment particulars.

Two confirmation letters from my creditors.

In the circumstances, I request you to complete the assessment at an early date and oblige".

Ex. D. 155 is another enclosure thereof which reads as under relating to the sources from out of which defendant No. 1 is said to have constructed the entire house as it stood on the date of the suit.

"SOURCE FOR INVESTMENT

The Site No. 488, Block No. 1 in West of Chord Road III Stage, Extension, measuring east to west 60 Feet and North to South 40 feet was allotted to me in the year 1973-74 for a sum of Rs. 7,200/- which I have paid out of my savings.

I have started the construction of the house during the year 1979 and completed the same in the month of February 1982, and I have occupied the house for my self-occupation since March 1982. The Bangalore Development Authority has assessed the cost of construction at Rs. 85,000/- for which the source is obtained as under:

Loan from Bank and Govt. Rs.

42,000/-

Amount realised on sale of old personal jewellery of my wife 13,500/-

Salary savings 8,000/-

Money received from my father 5,000/-

Loan of Pronotes

(i) Sri D. Srinivas, No. 37, Model House St., B''gudi., Bangalore. 6,500/-

(ii) Sri R.G. Patil, No. 1/1, I Cross, Pipeline, Malleswaram, Bangalore-3. 10,000/-

----------

85,000/-

----------

Statement of Income

Salary from April, 81 to March, 82 11,853/-

LESS: Deduction under Section 16(1) Rs. 2,370/-

under Section 80(c) Rs. 690/- 3,060/-

---------

8,793/-

---------

Bangalore Sd/-

Bangalore T. Dase Gowda".

Ex. P. 155 would go to show that the only resource from which defendant No. 1 is said to have banked upon to construct his house was his salary and a loan from Sri R.G. Patil and another loan from one Srinivasan in a sum of Rs. 6,500/-. The total amount said to have been spent by him for the construction of the house is shown as Rs. 85,000/- whereas, as pointed out earlier his evidence would go to show that he is said to have spent about more than Rs. 2 lakhs for the construction of the house. This circumstance is indeed one of the very important circumstances which should enter into the judicial verdict while considering the question as to whether the defendant No. 1 had sufficient sources to construct and complete the house in question. Further, the income tax return as reflected in Ex. P. 153 for the year ending March 1982 would go to show that the return shown therein is only Rs. 8,790/-, apart from the agricultural income of Rs. 5,000/-. These circumstances will speak for themselves and it is not necessary at this juncture to dilate on this aspect.

Further, defendant No. 1 has tried to make out that he had realised the amount by the sale of sheep, cow etc. It is necessary to note here that defendant No. 1 has admitted in the course of his evidence that he did not inform his department about his owning the cows, sheep and about the sale of sheep and cows and gold. Further, as seen earlier, defendant No. 1 had stated that he had realised an amount of Rs. 15,000/- on one occasion and another sum of Rs. 3000/- by the sale of the ornaments of his wife. However, in the document at Ex. P. 155 it is seen that the amount realised on sale of personal jewellery of his wife is Rs. 13,500/-. This discrepancy in the version given by defendant No. 1 at various stages would corrode the credibility in his evidence. Further, as pointed out earlier, if really defendant No. 1 had all these resources at his command as deposed to by him there was certainly no necessity whatsoever for him to have stopped construction for such a long period and also there was no necessity for him to apply to his superior seeking permission for alienating the property. These circumstances if appreciated together will certainly give an indication to the pecuniary position in which defendant No. 1 was placed during the relevant point of time. The submissions made by Sri Karanth, learned counsel for the appellant will have to be considered in the context of what is stated hereinabove. It is true that the different receipts spoken to as having been issued by different witnesses examined for plaintiff in the case and referred to earlier for the period look alike. However, on that count alone it is not possible to conclude that they are stage managed. Even otherwise, the oral evidence given by the different witnesses is there as it is. A perusal of the evidence of the witnesses examined in this case certainly would not go to show that these witnesses are not witnesses of truth. Having regard to the fact that the witnesses themselves are examined, the question as to whether the receipts said to have been issued by them have been prepared at one time or not would certainly not assume much significance and as such we are not inclined to agree with the submission of Sri Karanth, learned counsel for the appellant, that these receipts which appear alike would render false the evidence of the witnesses examined in the case.

It was next contended by the learned counsel for the appellant that if Exs. P. 135 and P. 133 and P. 134 are read together the following discrepancies with reference to the account said to have been spent by the plaintiff in the context of the construction of the house would reveal itself. In particular, Sri Karanth, learned counsel, has tried to show that there is a discrepancy with reference to the following items. It would be convenient for the sake of clarity to state here the said recitals. It is as under:

Date Particulars in Ex. P. 135 Debit Entry in Ex. P. 133

in Rs. Page No. Corresponding Credit entry in Ex. P. 134

in Rs. Page

1 2 3 4

03-09-1981 D. Srinivasaiah 12,000 22 12,000/-

08-09-1981 -do- 5,400 22 5,400/-

08-09-1981 -do- 7,000 22 7,000/-

09-09-1981 -do- 11,000 23 11,000/-

10-09-1981 -do- 1,400 23 1,400/-

12-09-1981 -do- 400 23 400/-

15-09-1981 -do- 18,700 23 18,700/-

16-09-1981 -do- 6,000 23 6,000/-

61,900 61,900/-

Sri Papanna, learned counsel for the plaintiff has not been able to show effectively as to how the submission made by Sri Karanth, learned counsel for the plaintiff, in this behalf is not correct. However, it was submitted by Sri Papanna, learned counsel, that though certain discrepancies are reflected in the documents referred to hereinabove in the preparation of Ex. P. 135 the same cannot be made much of having regard to the fact that these discrepancies were not put to plaintiff while he was in the witness box, in the course of his cross-examination which were within the special knowledge of plaintiff and he alone could have explained these discrepancies. However, we are of the view that it is not necessary to go into the detailed discussion on this aspect, having regard to the other overwhelming evidence to show that the plaintiff had spent the amount for the completion of the construction of the house.

The financial capacity of plaintiff/respondent is also not in dispute and Exs. P. 133 and P. 134 would also reflect his financial capacity. Ex. P. 136 also throws the light on this aspect; it is the balance sheet of the plaintiff as on 31-3-1982 submitted to the Income Tax Department herein. It is shown therein that an amount of Rs. 2,51,671.00 was spent for the construction of the building No. 488, I Block, III Stage, West of Chord Road, Bangalore (the suit house). The balance sheet would also go to show the magnitude of the assets of the plaintiff.

Further, there are also other circumstances which would throw light on the question in controversy to which brief reference is necessary. In this connection it is necessary to notice that plaintiff had come into possession certain important documents pertaining to the suit house. They are already referred to earlier while discussing Points 1 to 3. In that connection we have also held that plaintiff was put in possession. Defendant however has tried to explain away plaintiffs custody of these documents in the course of his evidence. In this connection the version of defendant No. 1 in the course of his deposition deserves to be noted. In para 23 of his deposition defendant had stated that he has stopped further construction of the work of the building in the month of August 1980. He has further stated that in the month of April 1980 he was transferred from Accident Relief Unit to Chickpet Traffic Zone, Accident Investigation Squad and after transfer his office was attached to Central Police Station, Bangalore, and in the month of August or September 1980 an accident case relating to the car belonging to the plaintiff Srinivasaiah had come to him for investigation and that it was a case of the car of the plaintiff being hit by the opposite vehicle and that the said case had come for investigation to him and in the course of the investigation of the said case plaintiff Srinivasaiah was often seeing him to enquire the fact as to whether the vehicle which hit his vehicle had been traced or not and that he used to approach him with his friends in his car with the request to trace the opposite vehicle as soon as he could as he (plaintiff) had to file a claim case under the Motor Vehicles Act for compensation. It is also his version that on those occasions the plaintiff used to introduce his friends to him like Engineers, Doctors and Contractors and plaintiff has introduced himself to defendant-1 as a Civil Contractor and Engineer and whenever he approached defendant-1 and he used to say that he had done the civil contract work of the B.D.A., Corporation and Military Engineering Service. It is also his version that he introduced himself as a building contractor and during the course of the investigation of the said accident case plaintiff used to approach him twice or thrice in a week and plaintiff was coming even when the office of the defendant was shifted. It is also the version of the defendant that plaintiff posed himself as a very influential person whenever he was approaching him. It is also his version that plaintiff used to come to his house and the personal contact between the plaintiff and defendant ripened into close friendship. It was also stated by him that he came to know that plaintiff and defendant No. 1 belonged to the same community. In the course of his cross-examination defendant No. 1 has stated that plaintiff had come to him in connection with the said case in the month of August or September 1980 while he was working in Central Police Station. It is also his version that plaintiff sought his assistance in the said case as he wanted to file a claim petition before the Claims Tribunal and plaintiff sought his assistance to trace the vehicle. Further it is elicited that the plaintiff was coming to him seeking his assistance in the said case for about one or one and a half months and ultimately the vehicle was traced and the accused was convicted. He has also stated that he has investigated that case.

From the version given by defendant No. 1 in the way and manner as stated hereinabove, it appears to be the version of the defendant No. 1 that during the course of the period covered for the investigation friendship between him and the plaintiff had developed. However, this version stands exploded by the fact that the investigation into this case did not really take such a long time as was sought to be made out by the defendant. In this connection Exs. P. 142 and P. 164 would throw a lot of light. From Ex. P. 142 it is seen that the F.I.R. was lodged on 26th of August, 1980. It was received by the Metropolitan Magistrate II Court on 27th August, 1980 at 3.45 PM. Registration number of the vehicle is also reflected there. Register number given there is AAT 409. The name of the driver is also shown as Mohd. Anwar who was the accused. A perusal of Ex. P. 142 would go to show that all the requisite information was supplied by the first informant that is to say the instant plaintiff. Further Ex. 164 would go to show that on 27th of August, 1980 itself the accused confessed the guilt and his plea was accepted by the learned Metropolitan Magistrate. In the result, the accused was convicted under Section 252, CPC and was sentenced to pay fine. In other words, the very next day, the criminal case reached its terminal point. Under these circumstances it is obvious that there was no occasion for the plaintiff to wrack his brain for tracing the car. In this background, the evidence of defendant-1 referred to earlier that a sort of intimacy developed because of the frequent visits of plaintiff to him in connection with the investigation of the case in question is rendered false. In that context his further version that because of such intimacy he reposed confidence in the plaintiff and that therefore he entrusted to him the work relating to the sanction of the plan and for that he parted with the documents found to be in the custody of the plaintiff also loses its credibility.

We have stated earlier that the version given by the 1st defendant that he made payment of tax is not acceptable. Under these circumstances, the fact that the plaintiff-respondent-1 paid the tax in terms of the documents referred to earlier would indeed bring into being a lot of credibility to the evidence of the plaintiff that he was in possession of the property and that he completed the construction of the house in question. At this juncture, it is indeed necessary to make a mention here about another circumstance which has been highlighted by Sri Karanth, learned counsel for the appellant. In fact, the same was briefly referred to earlier. The said circumstance pressed into service is that as on the date on which the suit was filed, the plaintiff admittedly was not in possession of the properties and even the trial court has taken the view that the version of the plaintiff that he was dispossessed by the 1st defendant on 28-3-1982 is not acceptable. In that context, it was submitted by Sri Karanth that the whole theory built-up by the plaintiff that he completed the construction of the house falls to the ground. It is not necessary to consider this aspect at this stage since the same will be dealt with separately when we are going to consider the next point. At this stage, it will suffice if it is stated that the evidence alluded to hereinabove would indeed unmistakably go to show that the plaintiff was put in possession of the property pursuant to the agreement of sale and that he who completed the construction of the building. The latter part of point No. 4 with reference to the amount which the plaintiff is said to have incurred for the completion of the construction of the house would, if at all, assume significance in the context of the question whether the plaintiff is entitled to the relief of specific performance or whether his claim for alternative relief can be granted. At this stage, therefore, we do not consider it necessary to record any finding with reference to the latter part of point No. 4. Point No. 4 is answered accordingly.

Point No. 5

Under this point, we are required to consider the question as to whether the case of the plaintiff that the defendant-1 forcibly occupied the suit premises on 28-3-1982 and appropriated 79 bags of cement and certain other building materials alleged to have been kept by the plaintiff in the suit premises is acceptable. The trial court has held that the plaintiff has failed to prove that the defendant forcibly occupied that suit premises on 28-3-1982 and took possession of the articles and goods of the plaintiff as alleged in para 9 of the plaint. It is necessary to note here that the trial court was mainly influenced by the fact that notwithstanding the fact that the premises in question was said to have been forcibly occupied on 28-3-1982 by defendant-1, plaintiff did not have recourse to any remedy in a court of law. It would be indeed necessary to allude to a portion of the judgment of the trial court in this behalf with a view to see as to whether the approach of the trial court in this behalf is correct. This aspect is dealt with by the court below at paras 64 to 69 of its judgment. However, the gist of the reasoning is reflected in para 67 after referring to the evidence adduced by the parties in this behalf in the earlier paragraphs. Among other things, in para 67 of the judgment, the trial court has observed as under:

"67. Having regard to the above facts, it appears improbable that the plaintiff could have kept quiet without lodging a complaint to the police. The only reason assigned by him was that he had been advised by P.W. 2 and Sri R. G. Patil not to lodge any complaint with the police. Can it be expected that he should not have asked his watchman Yellappa at least to lodge a complaint to the police, especially when he had been filed down for the whole of that night. The evidence of this nature does not appeal to the commonsense. In my opinion, if really the things had happened in the manner stated by P.W. 1, the minimum that can be expected of is to lodge a complaint to the police or at least he could have asked the watchman to have lodged a complaint to the police."

Again in paras 68 and 69, the trial court has observed as under:

"68. P.W. 5 Yellappa has narrated about these facts in a very dramatic manner which does not appear to be true.

Therefore, I am of the view that the entry of defendant No. 1 into the suit premises in the manner sought to be established by the plaintiff and his having taken possession of the left over articles of the plaintiff is not capable of being believed. Hence the said allegation of the plaintiff is rejected as being not capable of being believed. In this view of the matter, I hold that the plaintiff has failed to prove issue No. 4 and it is accordingly decided against the plaintiff and my finding on issue No. 4 is in the negative."

A perusal of the reasoning of the learned trial judge would indeed go to show that the learned trial judge was influenced only by one factor namely that the plaintiff did not lodge any complaint in the context of the situation alleged by him. It will have to be seen as to whether the finding of the trial court in this behalf is acceptable.

At the very outset, we are constrained to observe that in substance, the said finding of the trial courts in a way contradicts its earlier finding recorded in the course of its judgment that the plaintiff was put in possession of the property in pursuance of the oral agreement on 1-9-1981 and that it was the plaintiff who completed the construction of the building. Further, it is admitted that on the date on which the suit was filed, defendant was in possession of the property. We have already held hereinabove that the finding recorded by the learned trial judge in this behalf is correct while we recorded our finding on point No. 1. Once it is held that the plaintiff was put in possession of the property, and that the defendant was found to be in possession of the property at a later date, and it is not the case of the defendant that he took possession of the property in any other manner, the version of the plaintiff that he was dispossessed by the defendant is rendered highly probable. It appears that this aspect has been lost sight of by the learned trial judge and failure to approach this aspect from this perspective has led the trial judge to record a wrong finding.

The learned counsel for the appellant, however, invited our attention to certain circumstances to show that the theory put forward by the plaintiff that he was dispossessed by the 1st defendant cannot be countenanced. In this connection, our attention is invited to the printed invitation card produced by the 1st defendant at Ex. D. 5. Apart from that the learned Advocate for the appellant has also invited our attention to the same aspect which has been dealt with by the learned trial judge, that is to say, the inaction on the part of the plaintiff in lodging a complaint before the police or having recourse to a court of law immediately after the alleged forcible occupation of the property by the 1st defendant.

In so far as the submission with reference to the invitation card is concerned, we are not inclined to attach much importance to the same because even the witness who is stated to have attended the Gruhapravesham has not spoken with reference to the invitation card as having been received by him. Mere production of a solitary invitation card by the 1st defendant is not sufficient to take a view that in fact ''Gruhapravesham'' was arranged by the 1st defendant.

In so far as the question as to inaction on the part of the plaintiff in lodging a complaint or rushing to a court of law is concerned we have to point out that in the facts and circumstances of the case, the said conduct on the part of the plaintiff would not really assume much significance. It is necessary to note here that what was pleaded towards the transaction of sale was only an agreement to sell and the sale deed was yet to be executed. It was during this period that the plaintiff had hazarded to complete the construction of the building. Further the totality of the evidence would indeed go to show that this agreement in question came into being on account of the mediation of P.W. 2 Ramaswamy Iyengar and R.G. Patil. If, under these circumstances, the plaintiff did not approach a court of law immediately next after the alleged forcible dispossession and instead thought of getting the matter settled amicably through the mediation of well-wishers like Ramaswamy Iyengar and R. G. Patil, we do not think it unnatural. It is necessary to mention here that different persons react differently to a given situation. Might be, that some persons in the circumstances referred to by the plaintiff, perhaps would have rushed to a court of law and also lodged a complaint before the police. However, it is not possible to say that that should be the conduct of each individual in the context of the situation referred to by the plaintiff. In the context of the explanation given by the plaintiff in the course of his evidence, we are indeed of the view that the view taken by the learned trial judge that the conduct of the plaintiff in not filing a complaint before the police immediately after the forcible occupation of the premises by the 1st defendant is a circumstance which will militate against the case of the plaintiff, is not correct. For the reasons stated hereinabove, it is not necessary to dilate on this aspect any further. We are of the view that the evidence on record and the circumstances brought into being on record would unmistakably go to show that the 1st defendant did dispossess the plaintiff at or about the time alleged by the plaintiff. It may be that there is little variations here and there with reference to the manner of dispossession. We have it from the evidence of the plaintiff that he was not in station on the date the alleged forcible occupation took place. It may be that the evidence of P.W. 5 Yellappa might look little unnatural. However, these are not circumstances which would displace the conclusion which one has to reach in the context of the circumstances indicated by us earlier. Under these circumstances, we have no hesitation whatsoever in holding that the 1st defendant forcibly occupied the premises in question on or about 28-3-1982.

The next question to be considered with reference to the instant point is as to whether the finding of the trial court as regard the claim of the plaintiff towards the value of the articles said to have been taken possession of by the 1st defendant after he unauthorisedly occupied the premises in question is correct.

The precise allegation with reference to this aspect can be seen at para 9 of the plaint. In para 9 of the plaint, among other things, the plaintiff has alleged that the defendant-1 took possession of certain articles and goods of the plaintiff, viz., 75 bags of cement, wood, plywood sheets, paint, electric materials, construction materials, sanitary materials, etc., worth more than Rs. 23,000/-. The 1st defendant has denied this allegation in toto in the course of his written statement. The evidence having a bearing on this aspect in the case is the evidence of the plaintiff and the evidence of P.W. 5-Yellappa. No doubt, it is true that this aspect is spoken to by the plaintiff in the course of his evidence. However, if this version is appreciated from the probabilities of the case, we are indeed of the view that there is no convincing evidence on record in this regard. It is necessary to note that even the plaintiff had already thought of performing ''Gruhapravesham'' in the second week of April 1982. In other words, the allegation in the plaint would indeed go to show that even at or about the time when the 1st defendant has forcibly occupied the premises, the defendant was also contemplating to perform Gruhapravesham. In that view of the matter, it appears to us that he had already completed the construction by then. In that context, it becomes difficult to believe that the articles referred to in para 9 of the plaint would have been kept in the premises idle. Further, the forcible occupation of the house is one thing and removal of the articles belonging to the plaintiff is another thing altogether. The plaintiff might have given the reason for not going to a court of law in relation to the unauthorised occupation of the premises by the 1st defendant. If really the plaintiff had actually kept the articles worth Rs. 23,000/- and the same were taken possession of by the 1st defendant, it would be indeed natural to believe that the plaintiff would have taken immediate steps to set law into motion in that regard, having regard to the fact that these articles were capable of being appropriated or likely to disappear or deteriorate. If the whole evidence is appreciated from this perspective, we are indeed of the view that the plaintiff has failed to prove that he has kept the articles referred to in para 9 of the plaint and that the defendant took possession of the same and appropriated to himself as alleged in para 9 of the plaint. Under these circumstances, we reject the claim of the plaintiff in this behalf and concur with the finding recorded by the trial court.

For the aforesaid reasons, point No. 5 is answered by holding that the plaintiff has proved that the defendant has forcibly occupied the suit premises on or about 28-3-1982 but he has failed to show that the defendant-1 had appropriated 75 bags of cement and certain other building materials said to have been kept by the plaintiff in the suit premises.

Point No. 6:

Under this point, this court is required to see as to whether the suit agreement is not legally enforceable. The learned Advocate for appellant submitted that having regard to the provisions reflected in Rule No. 18 of the City of Bangalore Improvement (Allotment of Sites) Rules, 1972, which were operating at the time when the allotment of the property in favour of the defendant-appellant took place, it was not permissible for the appellant to enter into an agreement like the one said to have been entered into between the plaintiff and defendant as per Ex. P. 6, and that therefore, even if it is held that the agreement is proved, the same is not legally enforceable. Rule No. 18 referred to earlier, reads as under:

"18. Restrictions, conditions and limitations on sales of sites.-(1) Notwithstanding anything contained in.- (i) these rules or any other rules, bye-laws or orders governing the allotment, grant or sale of sites by the Board of construction of buildings; or (ii) any instrument executed in respect of any site allotted, granted or sold by the Board for construction of buildings, the Chairman may at the request of the allottee, grantee or purchaser of a site, execute a deed of conveyance subject to the restrictions, conditions and limitations specified in sub-rule (2).

(2) The conveyance by the Chairman of a site in favour of an allottee, grantee or purchaser of a site (hereinafter referred to as the purchaser) shall be subject to the following restrictions, conditions and limitations, namely,- (a) in the case of a site on which a building has not been constructed.

(i) the purchaser shall construct a building on the site within such period as may be specified by the Board, as per plans, designs and conditions to be approved by the Board or in conformity with the provisions of the City of Bangalore Municipal Corporation Act, 1949, and the bye-laws made thereunder;

(ii) the purchaser shall not, without the approval of the Board, construct on the site any building other than a building for the construction of which the site was allotted, granted or sold;

(iii) the purchaser shall not alienate the site within a period of ten years from the date of allotment except by mortgage in favour of the Government of India, the Government of Mysore, the Life Insurance Corporation of India or the Mysore Housing Board, or any Cooperative Society approved by the Board or any Corporation set up, owned or controlled by the State Government or the Central Government to secure moneys advanced by such Government, Corporation, Board, Society or Corporations, as the case may be, for the construction of the building on the site;

(b) in the case of a site on which a building has been constructed, the purchaser shall not alienate the site and the building constructed thereon within a period of ten years from the date of allotment, except.

(i) by mortgage in favour of the Government of India, the Government of Mysore, the Life Insurance Corporation of India or the Mysore Housing Board or any Cooperative Society approved by the Board to secure moneys advanced by such Government, Corporation, Board or Society for the construction of the building on the site; or (ii) with the previous approval of the Board;

(c) in the event of the purchaser committing breach of any of the conditions in clause (a) or clause (b), the Board may, at any time after giving the purchaser reasonable notice, resume the site free from all encumbrances. The purchaser may remove all things which he has attached to the earth:

Provided he leaves the site in the state in which he received it. All transactions entered into in contravention of the conditions specified in clauses (a) and (b) shall be null and void ab initio:

Explanation.- In this rule, references to the Board shall be deemed to include the Chairman when authorised by the Board by a general resolution to exercise any power vested in the Board.

(3) Notwithstanding anything contained in sub-rule (2), the Board may, with the previous approval of the State Government, and on payment of such sum not exceeding twelve and a half per cent of the allotted value of the site by the lessee, by order in writing, permit the alienation during the period of the lease of the site and the building, if any, constructed thereon, on account of the inability of the lessee to reside in the City of Bangalore for reasons beyond his control or the insolvency or impecuniosity of the lessee. Where such permission is granted, the alienee shall, for the purposes of these rules, be the lessee subject to all the terms and conditions of the lease deed already executed."

The learned Advocate for appellant has particularly placed reliance on sub-rule (2) clause (a) clause (iii) which provides that the purchaser shall not alienate the site within a period of ten years from the date of allotment except by mortgage in favour of the Government of India, the Government of Mysore, etc. Dilating on this aspect, the learned Advocate for the appellant contended that this particular rule is enacted with an avowed objective and is based on principle of public policy. It was contended that the said rule is enacted with a view to see that persons who are in need of sites should not be deprived of a site by the Authority, and that persons who have got money power should not be enabled to acquire any number of sites. The learned Advocate for the appellant in this connection has placed reliance on a decision of this court in K. Chandrashekar Hegde v Bangalore City Corporation and N.B. Menon v Bangalore Development Authority, ILR 1988(1) Kar. 356. Reliance was also placed on the decision of this court in the same case rendered by the Division Bench and reported in Pee Kay Constructions v Chandrashekar Hegde, 1988(3) Kar. L.J. 543, Reliance is also placed on the provisions of Section 23 of the Indian Contract Act as also on the decision in Brij Mohan Parihar v M.P. State Road Transport Corporation and Others, AIR 1987 SC 29. He has also placed reliance on the decision reported in Vaman Srinivas Kini v Ratilal Bhagwandas and Co, AIR 1959 SC 689.

Sri Papanna, learned counsel for the respondent, on the other hand, contended that the rule relied on by the learned Advocate for the appellant has no application to the facts of the instant case, having regard to the fact that the period during which disability to transfer a property would be there, had already expired even in the year 1985. It was also contended by the learned counsel for the respondent that the ratio of the decisions pressed into service by the learned Advocate for the appellant has no application to the facts of the case.

Contentions were also raised by the learned counsel for the respondent that such a plea was not taken at an earlier point of time before the lower court and that, therefore, the same cannot be allowed to be raised at this stage. The learned counsel relying on the decision of a Division Bench of this court in Shivannappa Sidramappa Prantur v Virupaxappa Allappa Bagi, ILR 1980(1) Kar. 702, contended that the rule referred to by the learned counsel for the appellant imposes a bar on the transfer of property and an agreement to sell cannot be construed as either alienation or transfer within the meaning of that expression under the Transfer of Property Act. In sum, the learned counsel for the respondent contended that the submission made by the appellant in this behalf is liable to be rejected.

It will have to be seen as to whether there is any force in the submission made by the learned counsel for the appellant. The rule referred to by the learned counsel for the appellant is already culled out hereinabove. It is clear that the bar reflected in the said rule is a bar to alienate the property which has been allotted to a particular individual under the Act. In terms of the said rule, therefore, it cannot be construed that there is any bar for entering into an agreement to alienate as such. It is needless to say that there is a distinction between sale and agreement to sell. There is a transfer of interest in the property in a sale, in agreement to sell there is no such transfer at all. It is, therefore, clear that an agreement to sell does not involve an element of transfer or for that matter any element as to such alienation. In that view of the matter, it is clear that the rule referred to by the learned counsel for the appellant does not in terms apply to agreement to sell. In fact, an analogous situation had arisen in Shivannappa''s case. In the said case there was also an agreement to sell. A contention was raised on behalf of the defendant in the said case that if the agreement was enforced, the same would be hit by the mischief of Section 80 of the Karnataka Land Reforms Act, in that the plaintiff in the said case, according to the defendant, was not an agriculturist and sale of agricultural land in favour of non-agriculturist is barred by Section 80 of the Karnataka Land Reforms Act. Basing the submission on this line, it was contended that since a sale of the property involved in the said case would not be enforceable in law, a decree for specific performance cannot be granted. The Division Bench of this court with reference to the facts of the said case and the submission in the context of the said case observed as under in paragraphs 6 and 7 therein:

"In our view, the court below committed no error in refusing to frame an additional issue as prayed for by the petitioner. Firstly, as pointed out by the court below, there was no plea in the written statement pleading want of jurisdiction. Further, the issue as to whether the plaintiff was an agriculturist or not is not a material issue for consideration in the suit which is for specific performance of the agreement to sell agricultural lands. Though Section 80(1) of the Act prohibits the sale of agricultural lands to a non-agriculturist the proviso to the said section specifically provides that the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an Assistant Commissioner authorised by the State Government in this behalf in respect of any area, may grant permission to a person who is not an agriculturist to purchase agricultural lands if he bona fide intends taking up agriculture. Therefore, an agreement to sell agricultural lands even to a non-agriculturist is not a contract in contravention of the provisions of the Act. Section 83 of the Act provides for an inquiry, by the competent authority in respect of any sale made in contravention of Section 80 and to declare such sale as null and void. Therefore, the said section applies only to completed transactions and not to any agreement to sell agricultural lands. Hence, Section 83 is not at all attracted to the facts of the present case. As there is no bar in the Act for entering into an agreement to sell agricultural lands, even in favour of a non-agriculturist the question as to whether the intending purchaser is an agriculturist or not is not at all a relevant issue for consideration in a suit for specific performance of the agreement to sell agricultural lands.''

We receive support for the above view from earlier decisions of this court in which similar question came up for consideration. In the case of Neminath Appayya Hanamannavar v Jamburao Satappa Kocheri, the question for consideration was, whether an agreement to sell agricultural lands by a person, which would have resulted in his possessing lands exceeding the ceiling limit prescribed under the provisions of the Bombay Tenancy and Agricultural Lands Act was invalid and therefore unenforceable. This court held that the agreement to sell agricultural lands in favour of a person, even assuming that by such sale he would exceed the ceiling limit, was not expressly or impliedly forbidden by the provisions of that Act and it was held that such an agreement to sell was enforceable. In the case of Chayappa Santamappa v Mohamad Hasan, an objection was raised by the judgment debtor in the course of the proceedings under Order 21, Rule 90 of the Code of Civil Procedure to the effect that the sale contravened Section 63 of the Bombay Tenancy and Agricultural Lands Act and Prevention of Fragmentation Act. It was held that the question whether a sale was or was not invalid under Section 63 of that Act could arise only if there was a completed sale and the question could not therefore arise in an application under Order 21, Rule 90 of the CPC and therefore it was not necessary for the court to refer the said question to the authority under the said Act, as the question for consideration before the court was only as to whether the sale was vitiated by any material irregularity or fraud in publishing or conduct of the sale. To the same effect are the decisions in the case of H.N. Vinayaka and Others v Firm of H. Venkatasastry and Sons and Kanvihalli Chinnappa v Tigari Shivappa and Others."

A perusal of the view reflected in the above case and culled out hereinabove would go to show that an agreement to sell as such would not be barred even in the context of the situation reflected in the said case. In the instant case also the contention of the appellant is that the agreement if enforced would be hit by the rule referred to by him, and that, therefore, the agreement itself cannot be allowed to be enforced. We are indeed of the view that having regard to the wording of the rule referred to hereinabove and culled out, and for the reasons stated earlier including the reasons reflected in the decisions cited above it cannot be said that the rule puts an embargo on the agreement to sell.

Sri Karanth, the learned counsel for the appellant, however, contended, as pointed out earlier, that though the rule in terms may not apply to impose a bar for an agreement to sell, if the intent of the legislature is taken into consideration and having regard to the fact that the rule is based on public policy, an interpretation like the one which he had canvassed deserves to be accepted, more so in the context of the decisions cited by him. The submission made by Sri Karanth, learned counsel for the appellant, in this behalf will have to be considered in the context of those decisions. In K. Chandrashekar Hegde''s case referred to earlier, the learned Single Judge of this court has observed among other things as under:

"25. One central theme that runs through both the Acts and the Rules should be noticed. That is the entire scheme of acquiring the land by BDA or CITB, conversion of those lands into residential layouts and the allotment of sites in those areas to individual applicants would go to show that to satisfy the bare requirements of thousands of people who have settled down in this city to eke out a decent livelihood, or to spend their days of retirement, elaborate rules are framed to ensure not more than one site is allotted to an applicant who has not acquired a site in this city or elsewhere. Otherwise the very object of the scheme would be defeated if persons by sheer strength of money power are permitted to acquire as many sites as possible either for themselves or for members of their family and put up buildings thereon in complete disregard of the needs of the other persons who do not have even a single residential house or a site on which they can build houses for their benefit, use and occupation.

This court could take judicial notice of the fact that after the promulgation of the CITB/BDA Act, thousands of acres of land around Bangalore have been acquired for conversion into building layouts and to allot sites to people belonging to the various sections of the society. The owners of the lands, many of them agriculturists who have no other avocation, have been paid nominal compensation as prescribed under the Land Acquisition Act and not the rate they could have got under free market conditions. The very fact that they could not get what they wanted for the deprivation of their lands goes to show that these lands were acquired for the benefit of the people who belong to the lower and middle classes of our society who cannot, but for these housing schemes, dream of acquiring sites in this city. That is to say that the acquisition was for a public purpose and allotment of sites was also for a public purpose. It cannot be disputed that the rates prescribed by the BDA for the sale of sites do not compare with the prevailing market rates." Then, again at paragraph No. 27, the learned single Judge has observed as under:

"27. Since the acquisition was for a public purpose both under the CITB and BDA Acts, the value of the lands acquired was necessarily pegged down to a particular rate as governed by the provisions of Section 23 of the Land Acquisition Act. That only shows that the inter-play of supply and demand with the free market conditions did not apply to the acquisition of these lands. Person who was deprived of the land did not get any substantial compensation for losing his land as the acquisition was for a public purpose. The person to whom the site was allotted did not acquire an absolute right to enjoyment of the site but only the benefit of putting up a construction for his personal use subject to certain conditions and, therefore, the element of exploitation of the land by converting them into big sites for multi-storeyed apartments would be wholly alien to the entire scheme of both the Acts and the Rules framed thereunder. This is not a peculiar feature in this country alone."

Then, again the learned single Judge has observed at page No. 396 as under:

"This elucidation is equally applicable to the facts of this case since we are dealing with the legal and social aspects of user of the land in our contemporary society. So, when the courts are dealing with a case of this naturre, they should see whether they can hold the balance between public interest and private rights. The lands were acquired for a public purpose. But, after acquiring the land, can the very same land be converted into an area which could be profitably exploited by massive investment detrimental to the interests of the other adjacent owners of the very same area. The petitioners in both the petitions have very exhaustively highlighted the adverse consequences of exploitation of these sites by massive investment of capital and labour in complete disregard of their right to a peaceful and healthy life. Right to peaceful living is another facet of Article 21 of the Constitution and, therefore, it is open to this court to examine the entire scheme of both the Acts and the Rules thereunder, the allotments made thereunder and the agreement between the parties in regard to such allotments and satisfy itself whether the private rights that were sacrosanct in relation to property owners under the Transfer of Property Act could still be sustained and legally protected in disregard of the interests of the other property owners like the petitioners. Here in this case the public at large are the innumerable number of residents of H.A.L. II Stage and Indiranagar area who had acquired sites to put up construction strictly in accordance with law. They have not violated the conditions of allotment nor they have violated the building plan sanctioned by the Corporation. Must the law-abiding citizens like the petitioners herein suffer on account of the transgressions committed by the authorities and the builders in violation of law?"

It is necessary to note here that the Division Bench of this court in Pee Kay Constructions v Chandrasekar Hegde (supra), (which was a writ appeal preferred against the learned single Judge''s order referred to hereinabove) has confirmed the judgment of the learned single Judge subject to certain observations. The relevant portion in the said judgment in that behalf can be had at paragraph No. 28 therein, which reads as follows:

"28. These decisions establish the following principles,- (i) The City Corporation is bound by the reservation of the sites for particular purposes under the Statutory Schemes;

(ii) Sanction of the building plan by the Corporation, by itself, will not legalise the construction, if the construction is otherwise opposed to the scheme governing the area;

(iii) The residents of the area have a valid interest in the preservation of the area in the manner contemplated by the Scheme or the Plan governing the area;

(iv) The restriction as to the use of a particular land (or the site) is a beneficial covenant attached to other proximate sites and hence latter site owner can prevent the change of the land use by anyone putting up constructions which are not contemplated by the Scheme or Plan governing the area; and (v) A site meant for a single dwelling house, cannot be used to put up multiple dwelling houses, in the guise of constructing a single building containing different flats or housing units." In the context of the observations made therein, the Appellate Court dismissed the appeal subject to the observations referred to hereinabove and subject to the observation referred to in paragraph No. 30 therein. Paragraph No. 30 reads as under:

"30. The construction of the building involved in this appeal, cannot be put in the two sites referred to in the writ petition.

The third finding (referred as ''C'' in the opening para of this judgment) of the learned single Judge is outside the purview of the pleadings and the relief sought in the writ petition and hence we have not gone into the said question. The said finding of the learned single Judge is, therefore, set aside, without expressing any view on the merits of the matter involved therein".

Having regard to what is stated hereinabove, it is clear that the observations made by the learned single Judge at para 78 of his judgment are not interfered with by the Division Bench. In other words, the observations made therein by the learned single Judge hold good. However, on a perusal of the facts of the case dealt with by the learned Single Judge in the said case and having regard to the observations made therein, we are indeed of the view that the ratio laid down therein has no application to the facts of the instant case. It is necessary to note here that in the instant case, the period of 10 years had expired even during 1985. In that view of the matter, the question of any impediment with reference to the enforceability of the agreement thereafter did not arise at all. Further, having regard to the facts of the instant case, it also appears to us that the element of public policy (public interest) is also not affected in that it has come in evidence that plaintiff is residing in a rented house; that he has purchased the property in question for his self-occupation. We may also add here that the building that is constructed is a residential one and there is also no evidence to show that the plaintiff has got any other site in the City of Bangalore. Further it is seen that the agreement in question also recites in Cl. No. ii that the house is also meant for residential purpose.

Further as pointed out earlier having regard to the fact that the period of 10 years had expired even in the year 1985, there is also no violation of any of the provisions of the rules referred to by the learned counsel for the appellant or for that matter any other rule. Looked at from any point of view therefore we are indeed of the view that there is no force in the submission of the learned counsel for the appellant that the agreement in question cannot be legally enforced. Point No. 6 is answered accordingly.

Point No. 7

Under this point, the question for consideration is as to whether the plaintiff is entitled to a decree for specific performance. We have already taken the view that the agreement is proved. We have further taken the view that the plaintiff was put in possession of the property in furtherance of the agreement. We have also taken the view that the agreement is not contrary to any of the provisions of law. It is further seen that the plaintiff has also put up the construction in furtherance of the agreement in question. It will have to be seen as to whether in the context of these circumstances and in the context of the totality of the evidence on record, the plaintiff is entitled to a decree for specific performance.

The trial court has held that the plaintiff is entitled to a decree for specific performance. This aspect is dealt with by the trial court under issue No. 5. In other words, the trial court has used its discretion under Section 20 of the Specific Relief Act in favour of the plaintiff. Among other things, the trial court has taken into consideration the fact that the agreement is lawful. The trial court has also taken into consideration the fact that in the facts and circumstances of the case, the agreement is just and fair. The trial court also has taken into consideration that there is no circumstance to show that any undue advantage was taken by the plaintiff. On the other hand, the trial court has concluded that defendant No. 1 was favoured by plaintiff in entering into the agreement in question. The trial court has also taken into consideration the fact that the defendant did not plead any hardship in relation to the specific performance prayed for by the plaintiff. It has also taken into consideration the fact that defendant-1 has falsely contended that there was no agreement at all. The decisions of this court relied on by defendant-1 before the trial court, viz., the decision in Sudha v Sharadamma, 1987(2) Kar. L.J. Sh. N. 179, as also in Ranganayakamma v Govindanarayan, 1982(1) Kar. L.J. 385, have been considered by the trial court. The trial court has also pointed out that the fact that alternative prayer has been made by the plaintiff would not make any difference to the question as to whether the plaintiff is entitled to the decree for specific performance. On a consideration of totality of these circumstances the trial court has held that the plaintiff is entitled to a decree for specific performance in terms as stated by it in the operative portion of its judgment.

Sri Karanth, the learned counsel for the appellant, contended that defendant-1-appellant is a retired Government servant having a meagre pension whereas the plaintiff-respondent is a contractor. It is also contended that defendant-1 would have no other house to live in if he has to part with the said property in execution of the decree if to be passed and members of his family would be put to untold suffering. It was also contended that if the hardship which is likely to be caused to the defendant is juxtaposed with the hardship that may be caused to plaintiff if a decree for specific performance is refused, it cannot be said the balance of hardship is in favour of the plaintiff. In this connection, the learned Advocate has particularly relied on the observations made by the Division Bench of this court in Ranganayakamma''s case at para 15 therein. Para 15 reads as under:

"At the outset, we may make it clear that the hardship contemplated under clause (b) of sub-section (2) of Section 20 may be hardship or oppression arising from the terms of the agreement itself or from circumstances existing at the time entering into it. This has been so clarified by Explanation (2) thereunder. The mere loss or inconvenience resulting from the enforcement of a lawful bargain however onerous should not be regarded as hardship in this context. Inadequacy of price is not also a ground to be considered, unless the purchaser stands in a fiduciary position to the vendor or fraud entered into the agreement. Lack of knowledge of the real value of the property to be sold on the part of the vendor is not also a ground for refusal. Perhaps, a combination of these coupled with some other circumstances following from the enforcement of the agreement or collateral to it may persuade the court towards refusal provided those hardships were not foreseen by the vendor. Fry in his treatise on the Specific Performance of Contracts (6th Edn.) para 425, page 203, has stated:

"It would seem that, in considering the hardship which may flow from the execution of a contract, the court will consider whether it is a result obviously flowing from the terms of the contract so that it must have been present at the time of the contract to the minds of the contracting parties, or whether it arises from something collateral and so far concealed and latent, as that it might not have been thus present to their minds. It is obvious that a far higher degree of hardship must be present in the former than in the latter class of cases, for it to operate on the discretion of the court."

In the present case, it is not possible for us to visualize that the appellant was in a position to foresee all the said hardships which obviously flow from the enforcement of the agreement or those collateral to such enforcement. The agreement does not give us any indication why the couple wanted to sell their only property. The evidence on record does not show that the husband knew that he was too ill and beyond redemption. He died on April 28, 1970, whereas the agreement was entered into on November 17, 1969. We may, however, reasonably say that there was no compelling reason for the sale of the property although, Muniyappa (P.W. 2) has stated that the husband wanted to sell the property and go away because his younger brother''s son had thrown a chappal at him in that house. Even if that incident was true, it was too flimsy a ground to dispose of the property and run away from the place. Be that as it may, the reason for the appellant''s husband to dispose of the property is not so much relevant. The appellant was also a party to the agreement. Her knowledge about the consequences of the agreement is more relevant for our purpose. In our opinion, she as a rustic woman must have signed the agreement admits of no doubt. She, perhaps, thought like any other woman, that her husband would purchase some other property or provide her with an alternate accommodation. She might not have dreamt that he would die soon leaving her only the difficulties. The court below has, however, stated that she was not such a simple woman to be hoodwinked by any person. But we must state that, that opinion was on a wrong footing. The court relied upon a letter Ex. D. 3 in support of that contention. It has stated that, that letter was written by her to the doctor of her husband. But the fact is otherwise. The letter was not written by the appellant but by one Andalamma, enquiring about the health of the appellant''s husband. The appellant was not even aware of that letter.

The observation made by this court will have to be understood in a correct perspective. Among other things, it is pointed out by this court in the said case that the illustrations reflected under Section 20 are not exhaustive and if that is not the view to be taken, then the discretion left in the court in the Section will be rendered nugatory. While making the said observation this court, as can be seen has relied on a previous decision of the Supreme Court and also the observation made in detail in the Specific Performance of Contracts by Fry. It is obvious that the said preposition is well settled. However, the point for consideration is as to whether the facts of the instant case are such as would warrant the exercise of discretion in favour of defendant-1. In the case dealt with by this court it is seen that defendant-1''s husband had entered into a contract with the plaintiff to sell the property as he was unable to complete the construction of the building thereon. The matter did not stop there. Even before the time prescribed for the said agreement expired, the husband of the defendant died and they did not also have any house to live in Mysore City where the site was situate. Further, the financial condition of the defendant was also precarious, as is reflected from the totality of the circumstances of the evidence on record in the said case. Taking into consideration all these circumstances and having regard to the fact that the plaintiff would not be put to undue hardship if a decree for specific performance was to be passed, this court took the view that it was not a fit case for a decree for specific performance, with the result, the suit of the plaintiff came to be dismissed. However, we are of the view that the ratio in the said case cannot be made applicable to the facts of the instant case having regard to the peculiar facts of this case. Further, in the said case dealt with by this court that is to say, in Ranganayakamma''s case, certain circumstances were not within the contemplation of the parties when they entered into agreement. The facts are already stated and the same would go to show that certain developments did take place since after the agreement was entered into between the husband of defendant-1 and the plaintiff in the said case. The same cannot be said to be the situation here. In the instant case, defendant-1-appellant was admittedly in a tight pecuniary position. His sources of finance were extremely limited. He was unable to complete the construction of the house. He was being pressurised by quite a good number of creditors. It was under these circumstances that he entered into an agreement with the plaintiff. The agreement was entered into in the year 1981. The rate that is fixed by the parties for the properties in question was a sum of Rs. 1,12,000/-. Further, in the instant case, defendant-1 has not even remotely whispered in the course of his written statement as regards the hardship that would be caused in the event of granting a decree for specific performance. On the other hand, he has come out with an allegation that there was no agreement at all and he has also alleged fraud. His allegations in this behalf have been found fault with as can be seen from the discussion in the earlier portion of this judgment. It cannot be said that any of the circumstances which followed the date next after Ex. P. 6 was executed was not within the contemplation of the parties. It is required to be noted that it is only when there is an ensuing circumstance which was not within the contemplation of the parties at the time when the agreement in question took place and if that ensuing circumstance will have a bearing on the question of hardship then a responsibility is cast upon the court to see that the hardship of one party or the other is mitigated by granting suitable relief; but the ordinary rule is that specific performance should be granted and that the same should be denied only when equitable considerations point to its refusal and the circumstances go to show that the damages would constitute an adequate relief. In the facts and circumstances of this case referred to hereinabove, we are indeed of the view that there are no equitable circumstances which would disentitle the plaintiff to get a decree for specific performance.

It is also brought to our notice that the evidence on record would go to show that the wife of defendant-1 has already applied for allotment of house in the Karnataka Housing Board, Bangalore on 5-9-1981. In this connection, reliance is placed at para 74 in the evidence of defendant-1. Defendant-1 is seen to have deposed therein as under:

"My wife Kempamma might have applied for allotment of houses in the Karnataka Housing Board, Bangalore. I do not remember if she had given two applications in that regard on 5-9-1981.

Question: In respect of each of the applications given by her to the K.H.B. for allotment of houses she had deposited a sum of Rs. 5,000/- each by way of DD on 6-9-1981?

Answer: I did not give any amount to my wife for depositing in the Karnataka Housing Board. She might have deposited on her own along with her children out of her own funds. I later learnt that she had deposited the above said amounts in K.H.B. out of the amounts received by her from her mother (This is volunteered by the witness). My wife''s mother is residing in Chamarajapet, Bangalore. My wife''s mother is not having any account in the Bank. My wife''s mother might have had certain properties in her name, which I do not know specifically and she might have sold the same and had the cash with her. I do not know if my wife''s mother had any properties in her name.

(witness volunteers ''that my parents-in-law had sold all their properties in 1980 and apportioned the sale proceeds to their two daughters namely, my wife, and her sister).

It is not possible for me to say as to what properties were sold and to whom they were sold by them. I did not ask whether the sales effected by them were evidenced by any documents but I only learnt that they have been sold to their own relatives. It is not true to suggest that my parents-in-law had no properties of their own and they did not sell any of their properties as stated by me. The plaintiff also knows of the fact that my wife had applied for allotment of houses in Karnataka Housing Board. It is not true to suggest that on 5-9-1981 it is myself who had applied for the allotment of houses in the name of my wife and that it is I who has deposited the required amount with the K.H.B".

This aspect is also pressed into service by the learned Advocate for the plaintiff-respondent that no hardship would be caused to the defendant-1-appellant in the event of granting a decree for specific performance. We may only point out in this behalf that this aspect can also be one of the several factors to be taken into consideration while considering the question as to whether the defendant-appellant would be put to any undue hardship within the meaning of that expression employed in Section 20 of the Specific Relief Act. This aspect is dealt with by the trial court in the way and manner as indicated earlier and taking into consideration the totality of the circumstances, we are indeed of the view that the discretion exercised by the trial court cannot be found fault with. We, therefore, answer point No. 7 by holding that plaintiff is entitled to a decree for specific performance.

Point No. 8

The next point for consideration is as to whether the lower court has erred in holding that the plaintiff is not entitled to mesne profits prayed for.

Sri M. Papanna, learned counsel representing the 1st respondent-plaintiff submitted to the court that the trial court has erred in this behalf. Dilating on this aspect, it was argued by him that having regard to the fact that the plaintiff was put in possession of the property and that the plaintiff was entitled to protect his possession by virtue of the provisions contained in Section 53-A of the Transfer of Property Act, he was entitled to claim mesne profits since he was put in possession of the property pursuant to an agreement of sale, and that the defendant-appellant, in law, is liable to pay the mesne profits prayed for. It is also further submitted that in furtherance of the agreement entered into between the plaintiff and the defendant he also put up construction and taking into consideration all these aspects, he was indeed entitled to claim mesne profits.

Sri Karanth, learned counsel appearing for the appellant, however, contended that the question of awarding mesne profits in a suit for specific performance does not arise at all. Elaborating this argument he contended that in a suit for specific performance, all that the court can do, if at all the circumstances warrant, is to award some damages by way of compensation for the breach committed by the defendant. In this connection the provisions reflected in Section 21 (2) and (3) of the Specific Relief Act are pressed into service. It was therefore contended that the question of awarding mesne profits in a suit for specific performance does not arise at all. In this connection, the learned counsel has placed reliance on the provisions of Section 54 of the Transfer of Property Act, and also on the decision of this court in H.M. Kumaraswamy v T.P.R. Rudraradhya, 1965(1) Mys.L.J. 253, which has followed the decision of the Andhra Pradesh High Court in Ramalingam Pillai v Jagadambal, AIR 1957 A.P. 960. Incidentally, reliance is also placed on the decision of the Supreme Court in Ram Baron Prasad v Ram Mohit Hazra, AIR 1967 SC 744.

On the other hand, the learned counsel appearing for the plaintiff-respondent-1 has placed reliance on the decision of the Supreme Court in Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth Tax, Hyderabad, AIR 1987 SC 522, as also on the decision of the Supreme Court in Ram Rattan and Others v State of U.P, AIR 1977 SC 619. In particular, it was contended by the learned counsel for the respondent that the fact that in the instant case, possession was actually handed over to the respondent plaintiff for making the construction, the decisions relied on by the other side are clearly distinguishable.

In the context of the submissions referred to hereinabove, it will have to be seen whether the plaintiff-respondent-1 is entitled to mesne profits.

We are of the view that the submissions made by Sri Karanth, learned counsel for the appellant is covered by a decision of this court in H.M. Kumaraswamy''s case (supra). In the said case, this court, after alluding to the observations made by the Andhra Pradesh High Court in Ramalingam Pillai v Jagadambal (supra), has concurred with the observations made therein. The observations in the decision of the Andhra Pradesh High Court referred to and agreed to, are as under:

"That the said cause of action is the same is the view taken by Viswanatha Sastri. J., in Ramalingam Pillai v Jagadambal (supra). After pointing out that the claim for mesne profits in cases of this nature is wholly unsustainable, His Lordship proceeds to observe as follows:

"It was next argued that the plaintiffs claim might be regarded as one for compensation or damages. The plaintiff would be entitled to sue for compensation for breach of the contract to convey in addition to suing for the execution of a conveyance. The measure of such compensation would ordinarily be the amount of profits which the plaintiff would have received from the property between the date of the breach of contract and the date when the conveyance was actually executed. . . . The claim for compensation could and should have been put forward in the previous suit which the plaintiff filed for specific performance. Section 19 of the Specific Relief Act and the second illustration to that section would amply apply to the case. The right to compensation arose coincidentally with the right to specific performance and out of the breach or non-performance of the contract of sale. Viewed as a suit for compensation in addition to specific performance for which a decree has already been obtained by the plaintiff, the suit would be barred under Order 2, Rule 2, C.P.C."

With respect, I agree with the statement of the principle by His Lordship in the above extract".

Sri Karanth has also drawn the attention of the court to a decision of the Supreme Court already mentioned earlier wherein it is held by the Supreme Court that an agreement to sell does not create any interest in the immoveable property and equitable ownership recognised in England is alien to Indian law which recognises only one owner, viz., the legal owner. Marshalling his submission on these lines, it is contended that having regard to the fact that the defendant-appellant still continued to be the legal owner and the plaintiff did not acquire ownership right at all and in that context and in the light of the observations made by this court in H.M. Kumaraswamy''s case, the question of awarding mesne profits did not arise. However, it was submitted that in law, the plaintiff, if at all, would be entitled to some damages as provided under Section 21(3) of the Specific Relief Act. We have also perused the subsequent decision of the Supreme Court in Bai Dosabai v Mathurdas Govinddas and Others, AIR 1980 SC 1334, cited at the Bar by Sri M. Papanna, learned counsel for the plaintiff. A perusal of the said decision would go to show that its earlier decisions in Ram Baron Prosad v Ram Mohit Hazra (supra), and Narandas Karsondas v S. A. Kamtham, AIR 1977 SC 774, have been affirmed (vide para 6 of the judgment). However, with reference to Section 40 of the Transfer of Property Act the Supreme Court has observed that equitable ownership in property recognised by equity in England is translated into Indian Law as an obligation annexed to the ownership of property not amounting to an interest in the property but an obligation which may be enforced against a transferee with notice or a gratuitous transferee. It is also observed at para 10 therein that it is an obligation in the nature of a trust and that, therefore, an obligation which may be specifically enforced. However, it will suffice if it is noted at this stage that the person in whose favour an agreement of sale is executed, will not have any interest in the immoveable property. The two other decisions cited at the Bar by Sri M. Papanna deserve to be noticed.

In the decision in Amulya Gopal Majumdar v United Industrial Bank Ltd. and Others, AIR 1981 Cal. 404, it is observed that where a person in whose favour an agreement to sell is executed regarding an immoveable property, it is not necessary that the said person should have absolute title regarding the same so as to enable him to offer it as a security. However, it is noticed that the question involved in the instant case did not arise for consideration in the above case.

Similarly in the decision in Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth Tax, Hyderabad (supra), it is observed as follows:

"Under Section 53-A of the Transfer of Property Act, 1882, where possession has been handed over to the purchasers and the purchasers are in rightful possession of the same as against the assessee and the occupation of the property in question, and secondly that the entire consideration has been paid, and thirdly the purchasers were entitled to resist eviction from the property by the assessee in whose favour the legal title vested because conveyance has not yet been executed by him and when the purchasers were in possession had right to call upon the assessee to execute the conveyance, it cannot be said that the property legally belonged to the assessee in terms of Section 2 (m) of the Wealth Tax Act."

A perusal of the above observation would indeed go to show that the said observation was made in the context of the definition of ''wealth'' in the Wealth Tax Act. In that view, the said observation will have to be construed as being relevant in the context of the situation in which the said decision was delivered. It is therefore clear that the said decision is not of any assistance to the learned counsel for the plaintiff-1st respondent to counter the submission made by the learned counsel for the appellant.

In the same way, in the decision in Ram Rattan and Others v State of Uttar Pradesh (supra), it is observed that a true owner has every right to dispossess or throw out a trespasser while the trespasser is in the act or process of trespassing and has not accomplished his possession but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. In other words, the ratio laid down in the above decision is that if the trespassers succeed in taking possession of an immoveable property, the true owner cannot take law into his own hand to dispossess him but he has to take recourse to the remedies available under law. It will suffice if it is stated that the ratio of the above decision is not of much significance to resolve the question in controversy in this case under point No. 8.

Sri M. Papanna, learned counsel for the 1st respondent-plaintiff contended that having regard to the provisions contained in Section 53-A of the Transfer of Property Act, once when the plaintiff was put in possession of the immoveable property by virtue of an agreement, he was entitled to continue in possession of the property and any dispossession thereof will have to be construed as wrongful thereby rendering it possible for the plaintiff-lst respondent to claim mesne profits. It will suffice if it is stated that Section 53-A of the Transfer of Property Act will provide a valid defence to a person to protect his possession who has been put in possession of an immoveable property in part performance of the contract, and the same cannot be pressed into service to claim mesne profits. Further, as far as this case is concerned, it is a suit for specific performance and as such the court is required to look into the circumstances with reference to the relief of specific performance only. The provisions of Section 21 of the Specific Relief Act have set out the different reliefs available to the parties to the litigation in a suit for specific performance. Section 21 of the Specific Relief Act reads as under:

"21(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of compensation awarded under this section, the court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872.

(5) No compensation shall be awarded under this Section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such compensation.

Explanation:-The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section".

In the context of the provisions reflected in Section 21 quoted hereinabove, it is clear that the reliefs available to a party to whom specific performance is not granted and to a party to whom specific performance is granted are clearly adumbrated therein. In that view of the matter and for the reasons already stated earlier, we are of the view that the question of awarding mesne profits as such does not arise in the instant case.

If that be so, it will have to be next seen as to whether the plaintiff is entitled to any damages by way of compensation.

Sri Karanth, learned counsel appearing for the appellant-1st defendant, contended that the trial court did not have any occasion to grant the alternative claim made by the plaintiff for granting damages and, therefore, the question of awarding damages also does not arise in the instant case. However, he added that if at all the court is inclined, it can award some damages in the light of the provisions contained in Section 21(3) of the Specific Relief Act.

We have given our careful consideration to the submissions made on either side in this behalf. The provisions of Section 21 are already culled out hereinabove. A perusal of Section 21 of the Specific Relief Act would go to show that the court has got power to award compensation in certain cases. If the court decides that a decree for specific performance cannot be granted and at the same time if there was a contract between the parties which has been broken, then, the court has got power to award damages by way of compensation. In the same way, in a case where the court thinks it necessary to award a decree for specific performance, the court may at the same time find that the grant of a decree for specific performance may not be sufficient to satisfy the justice of the case. The court has got power to award some damages in such a situation also. However, whether it is awardable under Section 21(2) or 21(3) of the Specific Relief Act, the court is required to take into consideration the provisions of Section 73 of the Indian Contract Act relating to measure of damages. In the instant case, it is clear that it is clause (3) of Section 21 of the Specific Relief Act that is applicable, as we have already held that the plaintiff is entitled to a decree for specific performance.

As already pointed out, the question as to whether some compensation should be awarded or not will have to be decided by the court having regard to the facts and circumstances of each case. Sri Papanna, learned counsel for the plaintiff-1st respondent, contended that having regard to the fact that the plaintiff has put up construction costing more than Rs. 2 lakhs, according to him, it should form an essential fact to determine and award some amount by way of compensation. Dilating on this aspect, he contended that the fact that there was illegal dispossession of the plaintiff should form the basis for awarding and determining the compensation under Section 21(3) of the Specific Relief Act also. At this juncture, it is necessary to remember that the question of awarding compensation under Section 21(3) of the Specific Relief Act would arise for consideration in the context of the breach of contract committed by the 1st defendant and not dehors that circumstance. In the instant case, the subject-matter of the agreement was the site together with unfinished structure as it existed as on 1-9-1981. The construction added by the plaintiff after he was put in possession of the property was not the subject-matter of agreement of sale. Further completion of the construction of the unfinished building was done by the plaintiff on his own and obviously at his risk. It is not as if he was duty-bound to complete the construction of the building in accordance with the terms of the agreement. As already pointed out, the plaintiff, even without waiting for the culmination of the agreement of sale into a sale hazarded the risk of further construction. It is not necessary to dilate on this aspect further and it will suffice if it is stated that the further construction of the building and addition to the building to that which existed as on the date of the agreement at Ex. P. 6 were not the subject-matter of the agreement of sale. In that view of the matter, the question as to whether compensation is payable with reference to the provisions of Section 21(3) of the Specific Relief Act, and if that be so, what amount can be awarded will have to be considered without reference to the further construction of the building put up by the plaintiff as stated earlier. Under these circumstances, we do not consider it necessary to go into the question as to what is the amount that was spent by the plaintiff for putting up further construction which point we had kept open while considering point No. 4.

If that be so, it will have to be seen as to whether the circumstances brought into being on record are such as would warrant the award of any compensation under Section 21(3) of the Specific Relief Act in relation to awarding of a decree for specific performance. The question of awarding some compensation would arise only if this court takes a view that the decree for specific performance is not adequate to meet the entire justice of the case as indicated in Section 21(3) of the Specific Relief Act. In that view of the matter, we have to see as to whether the grant of a decree for specific performance would, in the instant case, satisfy or meet the entire justice of the case.

It is to be noted that the agreement in question had taken place in the year 1981. The site in question measures 60'' x 40''. At the time when the agreement in question took place, the price settled between the parties was a sum of Rs. 1,12,000/-. From the nature of the area in which the property is situated, it is clear that the property is situated in Bangalore City. Nearly 10 years have elapsed next after the agreement in question took place. During this interrugnum, price of the properties has increased many-fold. At any rate, the appreciation in terms of money in relation to real estate is such that it can easily exceed any sum which could be awarded as damages. Further, if money was invested in any bank, the interest that it would have fetched would not have kept pace with the appreciation in value of the property in terms of money. In the circumstances, the plaintiff has not been put to any pecuniary loss. In that view of the matter, we do not consider it necessary to go into the question as to the measure of damages in a case like this. At the same time, we are indeed of the view that as the defendant has taken law into his own hands by unauthorisedly dispossessing the plaintiff, as already observed by us, we consider it necessary to award a compensation Rs. 1000/- which, viewed in the context of the totality of the facts of the case, would completely meet the justice of the case in all its facets.

For the reasons stated hereinabove, the appeal is dismissed. The Cross-Objections are allowed in part. The decree for specific performance passed by the trial court is confirmed. The plaintiff is awarded a compensation of Rs. 1000/-. The 1st defendant (appellant) shall execute the sale deed in favour of the plaintiff (1st respondent) after obtaining necessary title deed from the B.D.A. on or before 30-4-1991 and deliver possession of the suit schedule property. In case, the 1st defendant fails to execute the deed of sale and deliver possession of the suit property on or before 30-4-1991 in the aforesaid manner, the trial court shall appoint a commissioner to obtain the title deed from the B.D.A. in favour of the 1st defendant and then execute a sale deed in favour of the plaintiff within 4 months from 1-5-1991 and deliver possession of the suit property. The balance of consideration lying in deposit in the trial court shall be paid to the 1st defendant.

In the facts and circumstances of the case, we direct both parties to bear their own costs in this appeal.