H C NAGAPPA Vs. THAIRUNNISA

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the Judgment and decree dated 17th January 2005 passed by the Fast Track Court, Tarikere In R. A. No. 50/1991 dismissing the appeal and confirming the judgment and decree passed by the court of Munslff. Tarikere In O. S. No. 237189 dated 29th June 1991 dismissing the suit of the plaintiff for specific performance of agreement of sale executed by the defendant or in the alternative refund of advance amount or in the alternative If the Court comes to the conclusion that there is cancellation of agreement of sale, to declare that the plaintiff has perfected his title by adverse possession.

(2.) I have heard the learned counsel for the appellant. The learned counsel for the appellant submitted that the appellant had filed an application for amendment of the plaint to include additional particulars regarding revenue entries by adverse possession and the same has been concurrently rejected by the first appellate Court as in the plaint itself there is an alternate prayer to declare that the plaintiff has perfected his title by adverse possession, If the Court holds that agreement of sale has been cancelled with effect from 1-1-1971.

(3.) I have considered the contentions of the learned counsel with reference to the material on record. The plaintiff filed the suit seeking for specific performance of the contract, wherein the defendant agreed to sell the schedule property in favour of the plaintiff by an agreement of sale dated 19-9-1968 for a consideration of Rs. 30,000/- and received an advance amount of Rs. 5,500 /-and thereafter, the plaintiff made payment amounting to Rs. 7,600/- and though the plaintiff is ready and willing to complete his part of contract, the defendant did not execute the sale deed. It is averred that if the court comes to the conclusion that if the agreement of sale has to be cancelled by the notice issued by the defendant, the plaintiff may be declared as an owner by adverse possession as he has been in possession of the property for more than 12 years adverse to the Interest of the defendant. The suit was resisted by the defendant denying the averments and execution of agreement of sale and further averred that even otherwise, by notice dated 1-1-1971. the alleged agreement has been cancelled and the plaintiff is not, entitled to specific performance nor declaration of title by adverse possession as the plaintiff was not in possession pursuant to agreement of sale under part performance of contract. The trial Court framed appropriate issues having regard to the pleading and reliefs. On behalf of the plaintiff, the plaintiff was examined as PW-1 and he also examined PW-2 to PW-4 and got marked exs. P-l to P-36. On behalf of defendant, defendant was examined as DW-1 and Ex. D-1 was got marked. The trial Court after considering the contention of the parties and the material on record, answered issues against the plaintiff and held that the plaintiff is not entitled for any of the relief sought for in the suit and accordingly, dismissed the suit of the plaintiff by Judgment dated 29th June 1991. Being aggrieved by the said judgment and decree, the plaintiff peferred regular Appeal No. 50/1991 and in the appeal, the plaintiff filed a memo stating that the appellant is not interested in pursuing the relief for specific performance of agreement of sale and return of the advance amount as claimed in the suit and confines his prayer for declaration of title by adverse possession and also filed an application LA. 17 under Order 6, Rule 17 to delete the averment made in the plaint regarding the prayer for specific performance and prays to include regarding ingredients of adverse possession at paragraph-12 to the effect that the plaintiff has been in long and undisturbed possession. The 1st appellate Court by Judgment dated 17th January 2005 held that the application filed under Order 6, Rule 17 is liable to be dismissed and held that the plaintifl has failed to prove that he has perfected his title by adverse possession as the plaintiff claimed to be in possession pursuant to agreement to sale under the part performance under Section 53 of the T. P. Act and if an amendment was sought before the first appellate Court on 3-3-2000 lor giving-up the prayer for specific performance, the plaintiff could not have claimed adverse possession. However, the first appellate Court held that the plaintiff proved that he was put in possession of the schedule property and he has been in possession and he can be evicted only in accordance with law and the possession can be taken only after informing the plaintiff and accordingly, with the said observation, dismissed the appeal and the application filed by the plaintiff before the first appellate Court. Being aggrieved by the same, the plaintiff has preferred second appeal.