JOSEPH MIRANDA Vs. CECILA D’SOUZA AND OTHERS

JUDGEMENT

(1.) THIS appeal is by the plaintiff challenging the order of 1st Addl. District Judge, D.K., Mangalore, in R.A. No. 128/1989 dated 29.1.2004 in dismissing the suit filed by the plaintiff for specific performance by reversing the decree passed by the I Addl. Civil Judge, Mangalore in O.S. No. 163/1980.

(2.) ACCORDING to the plaintiff, the property to the extent of 14 cents, i.e., 12 + 2 cents in Sy. No. 116 of Marpady village, Karkala Taluk, D.K. was agreed to be sold by the defendant in favour of the plaintiff for a sale consideration of Rs. 40,000/ - towards which, plaintiff paid an advance of Rs. 16,500/ - to the defendant and also agreed to pay the balance consideration as on the date of execution of the sale deed. The defendant is said to have executed the agreement of sale on 7.7.1978 and agreed to execute the sale deed on 6.7.1980 and notice is also said to have been caused calling upon the defendant to execute the sale deed and since the defendant gave an untenable reply and did not execute the sale deed, the suit came to be filed. The suit was contested by the defendant stating that no such agreement was executed and that plaintiff himself was not ready and willing to perform his part of the contract and that he has not received any such sum of Rs. 16,500/ -. Based on the pleadings, the following five issues were raised by the trial Court: 1. Whether the plaintiff is entitled to the specific performance of the agreement to sell dated 7.7.1978 as prayed for and consequential relief for possession? 2. Whether the plaintiff is alternatively entitled to a sum of Rs. 16,500/ - by way of return of advance and another sum of Rs. 16,500/ - by way of liquidated damages?

(3.) TO what reliefs? After the trial and after hearing the respective parties, while answering the relevant issues, the trial Court has decreed the suit of the plaintiff against which, appeal was preferred before the I Addl. District Judge, D.K., wherein the appeal came to be allowed while setting aside the order of the I Addl. Civil Judge, Mangalore. Hence, this appeal.