VEERANAGOUDA BASANAGOUDA HIREGOUDAR Vs. UMESHGOUDA MALLANAGOUDA MARIGOUDAR

JUDGEMENT

(1.) DEFENDANT nos.2 and 3 of O.S. No. 88/94 which was pending on the file of Court of Civil Judge (Jr. Dn.), Shiggaon, Haveri District, are before this Court by filing appeal u/S 100 CPC challenging the judgment and decree passed in O.S. No. 88/1994 and affirmed in R.A. No. 30/1998 which was pending on the file of Court of Senior Civil Judge, Haveri. Respondent no.1 herein is the lone plaintiff in the said suit. Deceased second respondent Doddalingappa was first defendant in the said suit. Since he is dead his legal representatives have been brought on record as respondents 3 to 7. Smr. Laxmavva died and respondent no.2 -Makllappa is treated as her LR. Parties would be referred to as plaintiff and defendants as per their ranking given in the trial Court.

(2.) THE facts leading to the filing of O.S. No. 88/1994 by Sri Umesh Gowda Mallana Gowda are as follows: He was the owner of 20.29 acres of land in sy. No. 67/2 of Shishunal village, Shiggaon Taluk of erstwhile Dharwad District, now coming within the purview of Haveri District. According to the plaintiff, he chose to nominally sell 5 acres of which is the Southern portion of land of all 20.29 acres, to the first defendant and received a sum of Rs.25,000/ -. According to him, a registered document was executed in favour of the first defendant on 30.09.1980 as a security to the amount of Rs.25,000/ - received by him and that the said registered deed dated 30.09.1980 is a nominal sale deed. Possession was handed over to the first defendant under the said deed. According to him, transaction is only in respect of handing over possession of the property and not in respect of conveying title. According to him, defendant fno.1 was liable to reconvey the property and redeliver possession of the property in case the plaintiff were to return Rs.25,000/ - within 5 years from 30.09.1980. It is in this regard a separate agreement was entered into between the parties, is his case. Since plaintiff had received Rs.1,000/ - in excess of Rs.25,000/ - it was mentioned in the agreement dated 30.09.1980 that defendant to reconvey the property and redeliver possession of the property in case Rs.26,000/ - were to be returned by the plaintiff within five years. On 31.05.1985 plaintiff got issued a notice calling upon him to reconvey the property and to redeliver the property by receiving Rs.26,000/ -. First defendant had no manner of right, title and interest in the schedule property except retaining possession till amount of Rs.26,000/ - was returned to him. Inspite of the same, first defendant chose to execute a nominal sale deed for Rs.16,000/ - on 18.04.1981 in favour of the second defendant and the second defendant had also clear knowledge of the understanding between the plaintiff and the first defendant. Therefore, the alienation so made by the first defendant in favour of second defendant is illegal and invalid and as such the alienation made on 18.04.1981 in favour of the second defendant by the third defendant does not bind the plaintiff. In order to avoid future litigation defendant nos.2 and 3 have been made as parties, is the averment. Inspite of calling upon him to perform his part of contract by receiving the amount of Rs.26,000/ -, defendant nos.1 and 2 did not come forward. Hence he chose to file a suit for specific performance of the contract based on the agreement of reconveyance dated 30.09.1980 and also wanted possession to be handed over to him by defendant nos.1 and 2.First defendant has filed written statement and has virtually sailed with the plaintiff admitting the execution of the nominal sale deed and the agreement of sale dated 30.09.1980. He has no objection to reconvey the property and redeliver possession of the property in accordance with the terms of the agreement. Second defendant has chosen to file a detailed written statement denying all the material averments in the plaint and has called upon the plaintiff to prove the contents of the plaint strictly. According to him, present suit is a collusive suit being got filed by the first defendant. Case of the second defendant is that he he has not executed any agreement of sale on 30.09.1980 or at any point of time agreeing to sell the property by receiving Rs.25,000/ -. According to him, the registered deed dated 30.09.1980 is an out and out sale deed and he is in lawful possession of the suit property on the basis of a sale deed. Alleged suit is said to be not maintainable either in law or in facts for the relief of specific performance or any other relief. According to him, the alienation made by him in favour of the third defendant is a legal and valid alienation and that cannot be called in question on any ground. Plaintiff is stated to have filed a suit by creating a document styled as agreement of reconveyance dated 30.09.1980. Second defendant has chosen to file additional written statement stating that the present suit is not maintainable as the plea of readiness and willingness, is not forthcoming in the plaint as per Sec. 16(c) of the Specific Relief Act.

(3.) ON the basis of the above pleadings the following issues came to be framed: