BASAPPA Vs. CHANDRASHEKHARAPPA

JUDGEMENT

(1.) This second appeal is by the defendant before the Trial Court aggrieved by the reversal of the judgment of the Trial Court by the First Appellate Court. The Trial Court had dismissed the suit of the respondent-plaintiff for specific performance of the agreement of sale mainly on the ground of suit being barred by limitation. The First Appellate Court, on the other hand, took different view by holding that the suit is not barred by limitation and, accordingly, allowed the appeal filed by the plaintiff by setting aside the judgment of the Trial Court. It is in this background, this second appeal by the defendant.

(2.) Brief facts necessary for the purpose of this judgment are that the respondent-plaintiff and the appellant herein, being defendant, entered into an agreement of sale on 1-2-1976. As per the said agreement of sale, the appellant herein had agreed to sell the suit property, which is R.S. No. 270/1 (7 acres 38 guntas) situated in Guttal Village of Haveri Taluk, to the respondent-plaintiff for a sum of Rs. 23,850/- and received Rs. 10,000/- as earnest money. The date of executing the sale deed was fixed as before April, 1977. According to the plaintiff, the appellant herein went on accepting part payments over a period of time and while accepting the part payments also referred to the agreement of sale and last of the said part payment was made on 29-3-1978 according to the plaint averments. There after wards, the defendant went on accepting certain payments over a further period of time and it is the plaintiffs case that the entire sale consideration amount was paid in full and the last payment was made on 29-3-1978. Therefore, the plaintiff requested the defendant to execute the sale deed by issuing a legal notice on 22-4-1982, which was replied by the defendant on 1-5-1982. Following the refusal by the defendant to execute the sale deed, the suit was filed by the plaintiff on 18-4-1983. Stating that the plaintiff had not only paid the full amount but was ready and willing to accept the refund of earnest money as alternative relief in the event of the suit for specific performance not granted, the plaintiff on these averments filed the suit.

(3.) The defendant on his part took up the stand that no agreement of sale was executed as contended by the plaintiff, and secondly, as both parties were close relatives, the plaintiff with the help of some influential persons took the signature of the defendant on a blank paper and, as such, defendant had no intention at all to sell the suit property to the plaintiff. Apart from this, it was also the case of the defendant that he had repudiated the agreement of sale by indicating his intention to the plaintiff by issuing legal notice dated 23-6-1976 and, as such, the question of agreement of sale at Ex. P. 1 surviving thereafter did not arises and he also denied the receipt of entire sale consideration from the plaintiff. The defendant also took up the contention that the possession of the suit property was never parted to the plaintiff at any point of time.