K VENKOJI RAO Vs. M ABDUL KHUDDUR KURESHI

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree dated 29-11-1989 passed by the II Additional District Judge, Mysore in R.A. No. 21/1984. The facts necessary for the disposal of this appeal, briefly stated, are as under :

(2.) Plaintiff-respondent filed a suit against the defendant-appellant for specific performance of agreement of sale dated 26-8-1975 executed by the defendant in favour of the former. Plaintiff also prayed for an alternative relief for the damages in the sum of Rs. 6007-24 ps. Plaintiff's case can be briefly summarised as follows: Defendant was the owner of the suit house and plaintiff was a tenant in a portion of the same since 1966. Defendant entered into an agreement of sale of the suit property viz., the southern half of the entire property for Rs. 14,000/-. Rupees 2000/- was received as advance by the defendant. Defendant agreed to complete the sale transaction within 3 months from the date of agreement. In the agreement it was mentioned that the sale was for the purpose of discharging the prior encumbrances.

(3.) It transpired that the defendant had earlier entered into an agreement of sale with one Smt. Dhondubai. This fact was not made known to the plaintiff at the time when he entered into an agreement. She had filed a suit against the defendant in O.S. No. 139/77 in the Court of the Ist Additional Civil Judge, Mysore. Defendant had promised to get the portions of the property which were in the occupation of the tenants vacated and put the plaintiff in possession of the same. On account of these facts it was not possible for the defendant to execute the sale-deed within the stipulated time. Under these circumstances, the time to execute the sale-deed was extended up to 26-2-1976. Subsequently, that is to say, on 25-8-1977, it was further extended till the disposal of O.S. No. 139/77. O.S. No. 139/77 filed by Smt. Dhondubai was disposed of in the month of December, 1980 and plaintiff and defendant wanted to see if Dhondubai would prefer an appeal against the decision in O.S No. 139/ 1977 which was dismissed. After waiting for some time plaintiff took back the agreement executed in his favour by the defendant, which was filed in the suit in O.S. No. 139/77 before the Court of the Ist Additional Civil Judge, Mysore. Thereafter, plaintiff called upon the defendant to execute the sale-deed by a notice dated 22-4-1981. Defendant was served with the said notice on 30-4-1981. But defendant was postponing the performance which he was expected to do. Plaintiff was always ready and willing to perform his part of the contract as per the terms of the agreement dated 26-8-1975. Since defendant did not do the needful notwithstanding the notice given to him to execute the sale-deed, plaintiff filed the suit in question.