NASIR KHAN Vs. HAROON KHAN

JUDGEMENT

(1.) This miscellaneous first appeal is filed under Sec. 104 read with Order 43, Rule 1(r) of the Code of Civil Procedure being aggrieved by rejection of application in I.A.No.I filed under Order XXXIX, Rule 1 and 2 of C.P.C. in O.S.No.155/2023.

(2.) Heard the learned counsel for the appellant/plaintiff and learned counsel for the respondent Nos.1 and 2/defendant Nos.25 and 26.

(3.) The factual matrix of the case of the appellant herein, who is the plaintiff in O.S.No.155/2023 is that defendant Nos.1 to 23 are the legal representatives of one Badebylu Durgappa @ Durgappa of Urgadur Village, Shivamogga Taluk. Badebylu Durgappa @ Durgappa passed away on 15/6/1974 leaving behind two wives Smt. Sannadurgamma and Smt. Durgamma along with other children and defendants. The defendant Nos.1 to 16 are the legal representatives of Badebylu Durgappa through his first wife Smt. Sannadurgamma and defendant Nos.17 to 23 are the legal representatives through second wife Durgamma. It is the contention of the plaintiff that he entered into an agreement of sale with the defendant Nos.1 to 16 on 8/1/2015 and as per the registered agreement of sale, they have agreed to sell the property for a total consideration of Rs.45,00,000.00 and received an advance amount of Rs.20,50,000.00. Similarly, on 10/8/2015, the defendant Nos.17 to 23 executed another registered sale agreement in favour of the plaintiff agreeing to sell the schedule B property for a total consideration of Rs.45,00,000.00 by receiving an advance amount of Rs.20,00,000.00 from the plaintiff. The land owners i.e., defendant Nos.1 to 16 were not in possession of relevant documents and they required time to secure the same and hence, time was not the essence of the contract. In terms of the said sale agreement, the defendants agreed to execute the registered sale deeds after getting all the required documents. When the plaintiff was ready and willing to perform his part of contract of both these agreements, the defendants could not obtain the necessary documents and mutation entries until 10/5/2017. The defendants continued to delay the transaction on one or the other pretext. In the meanwhile, the plaintiff learnt that, despite existence of registered sale agreements, the defendant Nos.1 to 23 have entered into a Joint Development Agreement with the defendant No.18. The plaintiff issued notices to all the defendants i.e., defendant Nos.1 to 23 calling upon them to execute the registered sale deeds and no response was received and the plaintiff came to know that defendant Nos.1 to 23 have executed registered Joint Development Agreement dtd. 9/10/2017 with defendant Nos.25 and 26. Immediately, the plaintiff has filed the suit for the relief of specific performance in O.S.No.187/2017 and the plaintiff also sought the relief to declare the Joint Development Agreement dtd. 9/10/2017 as null and void. Thereafter, the Joint Development Agreement holder i.e., defendant Nos.24 to 26 have come forward for settlement, since there was a relief of temporary injunction and subsequently, they have been impleaded as parties to the proceedings. When the defendant Nos.24 to 26 came forward to negotiate, a compromise was entered between the plaintiff and defendant Nos.24 to 26, excluding the original owners and the suit was got dismissed against them and compromise was entered into between them.