RAJASHEKHAR MAHANTAPPA TENGINAKAI Vs. LINGAPPA VEERAPPA REVADI

JUDGEMENT

(1.) THIS is plaintiffs' second appeal against the judgments and decrees of the trial court and thelower appellate court. Plaintiffs arc the childrenand the wife of second defendant in the trialcourt. In the course of THIS Order, the partieswill be referred to by the ranks assigned to them in the trial court.plaintiffs brought the suit against defendant-1who had an agreement to sell in his favourexecuted by defendant/father of plaintiffs 1 to 4and husband of plaintiff-5 and having failed togo through the sale, suffered a decree for specificperformance. After obtaining the decree, thedefendants defaulted in making the deposit ofthe balance of the sale consideration and valueof the stamp duty etc. In court. With the result,dcfendant-2 re-entered possession of the land. In proceedings before THIS court under Section 115 C.P.C. defcndant-1 was given further time to make the deposit. As a result of which, he was able to revive the decree of specific performance in his favour. It was at that point of time, plaintiffs presented the original suit No. 6 of 1982 on the file of the munsiff, hungund inter alia seeking a declaration that the agreement of sale or agreement to sell executed by defendant-2 was not binding on them and their right to suit property measuring 7 acres and odd to the extent of 5/6th share shall be declared by the court. Defendant-2 remained ex-parte. That would be for the benefit of the family. Defendant-1 after setting out the facts which have already been referred to and which have not been disputed, claimed that the plaintiffs had all along knowledge of the transaction and kept quiet and it was only when he succeeded in reviving the decree for specific performance in his favour, in collusion with dcfcndant-2, they had filed THIS suit to deprive dcfcndant-1, the fruits of the decree he had obtained against defendant-2. He also pleaded that the sale was for legal necessity. The learned trial judge framed as many as six issues and four additional issues of which issue No. 4 is the crucial one for the purpose of THIS appeal and that issue reads as follows:-