MALIKAJAPPA BHIMAPPA BENNUR Vs. BHIMAPPA KASHAPPA PARASANNAVAR

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the learned First Additional District Judge, Belgium in Civil Appeal No.51 of 1957 on his file.

(2.) The facts relevant to the disposal of this second appeal may be stated briefly as follows: The appellant-plaintiff had filed a suit for recovery of possession of the suit schedule house and a court yard situated to the south of C.T.S. No. 1714 at Ramdrug against the defendant who are respondents in this second appeal. The plaintiff's suit was that the suit property belonged to him; a sale transaction with regard to the same was settled between the parties; the plaintiff executed an agreement deed exhibit 44 dated 26-2-1953 by which he agreed to sell the property to the defendants for a sum of Rs. 1,800 and in pursuance thereof an earnest money of Rs. 400 was paid by the defendants to the plaintiff. It was stated in the agreement deed that the balance amount i.e., Rs. 1400 will be paid within six months from the date of exhibit 44 and a registered sale deed will be executed by the plaintiff in favour of the defendants. It was the case of the plaintiff that the defendants were put into possession of the suit properties soon after the agreement. The plaintiff alleged that he is sued a notice to the defendants on 22-8-1953 calling upon them to pay the remaining amount of the purchase money and have the sale deed executed in their favour and should they fail to pay the remaining part of the purchase money and have the sale deed executed, the earnest money paid by them will be forfeited and the plaintiff will be entitled to take possession of the suit properties. It was the case of the plaintiff that the defendants failed to pay the remaining purchase amount and take the sale deed of the suit properties as per the terms of the agreement in spite of repeated requests. Therefore he filed the suit n the court of the Civil Judge Junior Division, Ramdurg for the recovery of possession of the suit property from the defendants and for compensation for wrongful use and occupation of the same for three years at the rate of Rs. 60 per year. He had also prayed for future mesne profits from the date of suit till actual delivery of possession to him together with costs.

(3.) The defendants in their written statements admitted execution of the agreement deed exhibit 44 and also the receipt of notice exhibit 46 from the plaintiff. But they stated that soon after the receipt of notice exhibit 46, they had received a notice exhibit 47 from the Bhavubands of the plaintiff on 26-8-1953 wherein they had alleged that they have also interest in the suit properties. Thereupon they i.e., the defendants issued notice exhibit 45 asking the plaintiff to remove the doubts regarding his title to the suit property. But the plaintiff failed to do the same. They also alleged that the time was not the essence of the contract. They further contended that the plaintiff has not handed over the suit property to them. They alleged that they have paid Rs. 300 to the Bhuvubands of the plaintiff and took possession of the same from them. They further contended that their possession to the suit property is lawful and therefore the plaintiff 's suit for delivery of possession was unmaintainable. The learned Civil Judge found that the plaintiff was the party to be blamed for the non-performance of the contract, that the time was not the essence of the contract, that the plaintiff delivered the possession of the suit properties to the defendants on their part were all along ready to perform their part of were all along ready to perform their part of the contract and they were not to be blamed. On the basis of these findings the learned Civil Judge took an equitable view of the case and ordered specific performance of the contract in the following terms: