N. SOMANATHA GOWDA Vs. PUTTAMMA AND OTHERS

JUDGEMENT

(1.) THIS is plaintiff's second appeal challenging the judgment and decree dated 17.9.2003 passed in R.A. No. 75/1991 on the file of Addl. Civil Judge (Sr. Dn.), Kolar, wherein the judgment and decree dated 22.7.1991 passed in O.S. No. 239/1990 on the file of Principal Munsiff, Kolar, was reversed, thereby setting aside the judgment and decree passed in favour of the plaintiff. The parties to this appeal are referred to by their rank in the trial Court.

(2.) THE facts leading to this appeal are that, the plaintiff filed a suit for specific performance against defendants 1 and 2 seeking to enforce agreement of sale dated 27.3.1989 in respect of land measuring to an extent of 1 acre 16 guntas in Sy. No. 51/2B and C situated at Kallahalli village, Kasaba Hobli, Kolar Taluk. Plaintiff's case is that the defendants 1 and 2 are mother and son respectively. They entered into an agreement with plaintiff for sale of the suit schedule property on 27.3.1989 for valuable consideration of Rs. 6,000/ -. On the date of agreement, defendants 1 and 2 received full sale consideration, delivered vacant possession of suit schedule property to plaintiff in part performance of the agreement of sale. The plaintiff is in possession, cultivation and enjoyment of the same from the date of agreement till date of suit. It is his case that as on 27.3.1989 there was bar preventing sale of suit schedule property under Prevention of Fragmentation and Consolidation of Holdings Act, 1966. Therefore, the defendants had agreed to execute the sale deed of suit schedule property in favour of plaintiff immediately after the said Act is repealed. Subsequently through others he came to know that there is no bar for registration of sale deed in respect of suit schedule property under the Fragmentation Act. Hence he approached defendants 1 and 2 to execute and register the sale deed of suit schedule property in his favour. Defendants 1 and 2 agreed to do so and promised to come to the Sub -Registrar's office at Kolar. But, they did not come on the day they assured to be present before the Sub -Registrar. After several such attempts, he got a panchayath held to get defendants 1 and 2 advised, which ended in vain. Thereafter, he got a legal notice issued on 24.3.1990 calling upon them to come to Sub -Registrar's office at Kolar and to execute the registered sale deed conveying the suit schedule property in his favour. Though the said notice was duly served on defendants 1 and 2, they did not respond to the same and deliberately kept quite. Hence he filed the suit for specific performance of agreement of sale deed dated 27.3.1989.

(3.) IN the said proceeding, though notice was duly served on all the defendants, 1st and 2nd defendants remained ex parte. It is only 3rd defendant who contested the suit denying suit averment regarding defendants 1 and 2 executing agreement of sale of suit schedule property in favour of plaintiff on 27.3.1989, receiving a sum of Rs. 6,000/ - as consideration for sale of suit, schedule property, receipt of entire sale consideration of Rs. 6,000/ - with an assurance to execute the absolute sale deed as soon as bar for registration of absolute sale deed under the Fragmentation Act is lifted, in part performance of said agreement defendants 1 and 2 put plaintiff in physical possession of suit schedule property on 27.3.1989 itself and possession of suit schedule property is in the hands of plaintiff pursuant to the alleged agreement of sale. He also denied all other averments made by plaintiff in his plaint.