NAGAPPA Vs. NEELAVVA; YELALVVA; GOURAVVA

JUDGEMENT

(1.) This is a plaintiff's regular second appeal, against the judgment and decree dated 23.02.2010 made in R.A. No.190/2009 on the file of the Fast Track Court-II, Dhrawad, sitting at Hubballi, confirming the judgment and decree of the trial court dated 21.12.2001 made in O.S. No.652/1999, on the file of the Principal Civil Judge (Jr.Dn.), Hubballi, dismissing the suit for specific performance, with costs of defendant Nos.3 to 8.

(2.) The plaintiff/appellant filed O.S. No.652/1999 for specific performance of contract contending that the 1s t defendant being the absolute owner of 4 acres of land in eastern side of Sy.No.54, had entered into an agreement of sale on 22.04.1986 and received a sum of Rs.35,000/- as part consideration amount and handed over the possession of the suit land to the plaintiff and agreed to execute the registered sale deed as and when called upon by the plaintiff, since he has been in lawful possession and vahivat with the suit property and also contended that defendant Nos.3 to 8 absolutely have no right or interest over the suit schedule property and inspite of the same, they have colluded with defendant Nos.1 and 2, and obtained a collusive decree in O.S.No.100/1987 and the same was confirmed in R.A. No.92/1992 and reaffirmed in RSA No.538/1996 before the High Court of Karnataka, only with an intention to defeat the rights of the plaintiff under the agreement dated 22.04.1986 and he was always ready and willing to perform his part of the contract by paying remaining balance amount of Rs.5,000/- to get registered the sale deed in his favour and inspite of repeated requests, the 1s t defendant denied execution of the registered sale deed. Therefore, he filed the suit.

(3.) The defendants 1 and 2 appeared through advocate and inspite of sufficient time grated, they have not filed any written statement. Defendants 3 to 8 have filed the written statement and contended that the suit filed by the plaintiff is false, frivolous and vexatious and the same is not maintainable and denied the allegation in the plaint that 1s t defendant was the owner of 4 acres of eastern portion of the land in Sy.No.54 and had entered into an agreement with the plaintiff and specifically contended that Sy.No.54 measuring 10 acres 13 guntas belongs to the husband of 3rd defendant namely Siddappa and after his death, defendant Nos.3 to 8 have succeeded to the same as owners and they are in lawful enjoyment and possession of the same. In the year 1986, the elders of the village obtained the signature of the defendant-Gouravva and created the alleged records by entering the name of 1s t defendant for 4 acres in Sy.No.54 and immediately, she has filed O.S. No.100/1987 challenging the said entries for declaration of title of the defendants 3 to 8 as owners to the entire extent and for permanent injunction and the said suit came to be decreed. Against the said judgment and decree, the defendants 1 and 2 filed the appeal in RA No.92/1992 before the appellate court. The same came to be dismissed. Against the said judgment and decree, defendant No.1/Neelavva has preferred RSA No.538/1996 before the High Court of Karnataka. The same came to be dismissed on 17.09.1998 and throughout the said litigation, defendants 3 to 8 have been declared as owners and possessors of the suit schedule property and after failing in a legal battle, defendant No.1 colluded with the plaintiff for creating the document purported to be an agreement. Therefore, the same cannot be enforced against the 1s t defendant or against the other defendants and also contended that the alleged agreement dated 22.04.1986 is barred by law of limitation as the plaintiff has slept for more than 13-14 years, etc. and hence, prays for dismissal of the suit.