MOHAMMED ASADULLA Vs. G. KASHINATH

JUDGEMENT

(1.) This is a plaintiffs second appeal assailing the correctness and legality of Judgment and decree passed by Principal District and Sessions Judge, Chitradurga dated 26.02.2011 in R.A. 32/2010 whereunder first appellate court has not only affirmed the Judgment and decree passed by trial court dated 18.01.2010 in O.S. 2/2009 whereunder suit for specific performance came to be decreed in part, but has also reversed the finding recorded by trial court on Issue No. 1 which related to the alleged agreement of sale dated 18.06.2007 on the ground that parties to agreement were not at ad idem and it is a nominal agreement.

(2.) I have heard the arguments of Sriyuths Sundar Ram, learned counsel appearing on behalf of appellant and K. Ramabhat, learned counsel appearing on behalf of respondent.

(3.) Plaintiff instituted a suit for specific performance of agreement of sale dated 18.06.2007 contending inter alia that defendant is the owner in possession of property bearing Sy. No. 50/1, Ramapura Village, Molakalmuru Taluk, measuring 2 acres 14 guntas (hereinafter referred to as 'Suit Schedule Property') and for the purpose of clearing hand loan and also to solemnize the marriage of his daughter and for his family necessities had offered to sell the suit schedule property in his favour for a sum of Rs. 2,55,000/ - per acre and in the presence of witnesses an Agreement of sale came to be entered into between the parties and on the date of agreement defendant received an advance amount of Rs. 1,00,000/ - and affixed his signature in the presence of the witnesses and in part performance of the said contract plaintiff paid further token advance of Rs. 1,00,000/ - on 16.09.2007 and same was duly acknowledged by defendant on the back side of the agreement dated 18.06.2007 which was also duly attested by the witnesses. Since it is agreed that time was not the essence of the contract and defendant had agreed to execute sale deed in favour of plaintiff or to his order, demands came to be made by plaintiff calling upon defendant to execute the sale deed by offering to pay balance consideration and despite approaching several times defendant refused to receive balance sale consideration and did not execute registered sale deed. Hence, plaintiff instituted the suit in question for decree of specific performance.