KHADIR SAHEB JAFFAR SAHEB Vs. AMIN SAHEB

JUDGEMENT

(1.) This appeal by the original defendant No. 3 is directed against the judgment and decree dated 15-11-1973 passd by the learned Addl. Civil Judge, Bijapur, in R.A. No. 175 of 1972 on his file, allowing the appeal of the plaintiff on reversing the judgment and decree dated 29-8-1972 passed by the learned Munsiff, Bijapur in O.S. 16 of 1967, on his file, dismissing the suit of the plaintiff for specific performance of contract to sell the suit land in favour of the plaintiff.

(2.) The plaintiff sued for specific performance of contract of sale under Ext. P-1 of Sy. No. 167/2 of Mahalbagayat, Bijapur and for its possession or in the alternative for recovery of Rs. 2,000 with future interest from the defendants. The suit land, according to him, belonged to defendants 1 and 2 who agreed to sell the same to him for Rs. 5,000 on 31-10-1965 and received Rs. 1,000 from him as advance with a condition that the balance should be paid within four months and they executed an agreement as per Ex. P-1 on that date. It was agreed that if they failed to execute the sale deed, they should return the advance of Rs. 1,000 plus damages of Rs. 1,000 to the plaintiff and this condition was in addition to and not in derogation of plaintiff's right to claim specific performance of the contract. The plaintiff gave registered notice to defendants 1 and 2 on 21-2-1966 calling upon them to receive the balance amount of Rs. 4,000 and to execute the sale deed and the same was refused and was returned un- served. Later defendants 1 and 2 executed the sale deed of the suit land in favour of defendant No. 3 on 9-3-1966 for Rs. 6,300 but mentioned in the sale deed only Rs. 5,000 as the consideration. The suit land appears to have been mortgaged with possession to the father of defendant No. 4 who in turn appears to have leased out a portion of 6 acres to defendant No. 3 for a period of 10 years. The remaining portion of 2 acres 15 guntas was in possession of defendant No. 4 and a litigation appears to be pending between him and defendant No. 4.

(3.) The plaintiff further averred that he was ready and willing to perform his part of the contract by paying the balance amount of Rs, 4,000 at the time of the execution of the sale deed, Since the defendants committed breach of contract, he sued for specific performance or in the alternative for refund of advance money.