M T SIDDASHETTY Vs. P H GOWDA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree in O.S. No. 556/2005 dated 19.11.2009 on the file of the XII Addl. City Civil Judge at Bangalore. The appellants were the defendants No. 1 and 2 in the suit and the 1st respondent was the plaintiff. The 2nd respondent was the 3rd defendant. For the sake of convenience the parties are referred to their respective ranking before the trial court.

(2.) In the suit, the plaintiff contended that defendant No. 1 was the owner of the eastern portion of the property bearing site No. 36, formed in Sy. No. 152/2 & 153/2 situated at Kethamaranahalli village, Manjunath Nagar. West of Chord Road, Bangalore, which is rnorefully described in the schedule to the plaint and hereinafter referred to as suit schedule property'. The new number assigned to the suit schedule property was No. 300 in the records of the Bruhat Bangalore Mahanagara Palike. The defendant's No. 1 and 2 were in possession and enjoyment of the suit schedule property. The plaintiff purchased the said property under a deed of Sale dated 13.12.2002 from the 1st defendant and his sons. The suit schedule property consists of 5 tenements. Two portions of the said property are under the occupation of defendant's No. 1 and 2 and other portions are in occupation of certain other persons, the possession of which is said to have been given by the 1st defendant. After the execution of the sale deed dated 13.12.2002, symbolic possession of the property was given to the plaintiff. The 1st defendant promised the plaintiff that he would evict all the tenants from the suit schedule property and handover vacant possession of the same to the plaintiff. After the execution of the sale deed dated 13.12.2002, the plaintiff realised that the 1st defendant had not obtained necessary title deed from the BDA. Therefore, plaintiff filed an application requesting the BDA to re-convey the land in his favour. Accordingly, BDA executed the sale deed 31.1.2004 in his favour. Thus, the plaintiff is the absolute owner of the suit schedule property. Since the defendants failed to vacate the suit schedule property he filed the suit for possession of the property and to direct them to pay damages in a sum of Rs. 1,20,000/- as well as future damages at the rate of Rs. 5,000/- per month from the date of suit till handing over possession of the property.

(3.) After service of suit summons, the defendants No. 1 and 2 have appeared through their learned Counsel and filed their written statement denying the plaint averments. It is contended that the plaintiff had entered into an agreement dated 13.12.2003 agreeing to purchase the entire property. On the date of execution of the sale deed dated 13.12.2002 the plaintiff paid only a sum of Rs. 4,21,000/-. He has failed to play the balance of sale consideration of Rs. 2,00,000/-, which is reflected in the subsequent agreement. Unless and until the plaintiff pays the balance of Rs. 2,00,000/- the defendants are not liable to vacate the suit schedule property.