JAYAMMA Vs. S.V. THIMMANNA

JUDGEMENT

(1.) This is plaintiffs' appeal. The original plaintiff Sri Ningappa had filed a suit against the present respondent Nos.1 and 2 (arraigning them as defendant Nos. 1 and 2) in O.S. No. 15/2002 on the file of I Addl. Civil Judge (Sr.Dn), Chitradurga, (hereinafter for brevity referred to as 'trial Court') for the relief of declaration and specific performance of contract.

(2.) The summary of the case of the plaintiff in the trial Court is that the defendant No.1 is the owner of the suit schedule site which is a site bearing No.2 and measuring 48 feet X 44 feet situated at I Block, Ujjinimutt Road, Chitradurga. The plaintiff and defendant No.1 are own brothers. Since 1976, the defendant No.1 had permitted the plaintiff to use the schedule property for the purpose of rearing cattle and she-buffaloes since the plaintiff was doing a milk vending business, as such, the plaintiff had put up a temporary shed in the property and using it for rearing the cattle and she-buffaloes. The defendant No.1 agreed to sell the suit schedule property in favour of the plaintiff for a consideration of a sum of Rs.1,50,000.00 and received a sum of Rs.50,000.00 as advance and partial sale consideration from the defendant No.1. In that regard, as an agreement to sell came to be executed between plaintiff and defendant No.1 on 16/7/2001. It was agreed between them that the vendor had to execute the registered Sale Deed in favour of the plaintiff/purchaser after receiving balance sale consideration of Rs.1,00,000.00 on or before 15/12/2001. Accordingly, when the plaintiff approached the defendant No.1 with the balance sale consideration of Rs.1,00,000.00 on 15/12/2001, the defendant No.1/vendor told that he had already sold the suit schedule property in favour of defendant No.2 for a consideration of Rs.1,75,000.00 under a registered Sale Deed dtd. 28/11/2001. The plaintiff contended that the defendant No.1 also had no right to sell the suit schedule property to the defendant No.2 and that the defendant No.2 had no right to purchase the suit schedule property from the defendant No.1, as such, the said Sale Deed has no legal value in the eye of law. Even after coming to know of the Sale Deed in favour of the defendant No.2, the plaintiff requested the defendant No.1 to execute a Sale Deed in his favour, but his request went in vain. Though the plaintiff was ready and willing to perform his part of the promise, since the defendant No.1 refused to execute the Sale Deed in his favour, he was constrained to institute the suit. With this, he prayed for a declaration to declare the Sale Deed dtd. 28/11/2001 executed by the defendant No.1 in favour of defendant No.2 as void and illegal and also for a direction to the defendant No.1 to execute a registered Sale Deed in favour of the plaintiff in respect of the suit schedule property after receiving the balance sale consideration. Alternatively, the plaintiff also prayed for recovery of advance amount of Rs.50,000.00 from the defendant No.1 with the interest at 18% p.a. thereupon.

(3.) In response to the summons served upon them, both the defendants appeared through their counsel in the trial Court and filed their written statement. The defendant No.1 in his written statement admitted that the plaintiff is his brother and the suit schedule property had fallen to his share (defendant No.1) under a Settlement Deed dtd. 6/7/1976. However, he denied that since 1976, he has permitted the plaintiff to use the suit schedule property for the purpose of rearing the cattle and she-buffaloes. He also denied the alleged Sale Agreement dtd. 16/7/2001. He called the Sale Agreement as a forged document and concocted in collusion with deceitful friends to make a wrongful gain. He denied that he had no right to sell the suit schedule property to the defendant No.2. With this, he prayed for dismissal of the suit.