ARJUN AND ORS. Vs. VENKATESH

JUDGEMENT

(1.) The petitioners, who are the defendants in the trial court, have filed this writ petition, against the order dated 02.12.2013 dismissing the application I.A. No. III, filed by the defendants, under Order VI Rule 17 read with Sec. 151 of the Code of Civil Procedure, 1908.

(2.) The respondent, who is the plaintiff in the trial court, filed suit for directing the defendants to vacate and hand -over the actual vacant possession of the suit property to the plaintiff and pay mesne profits at the rate of Rs. 32,333/ - per annum for the past three years, contending that he is the owner of the suit property and defendants approached the plaintiff, agreeing to purchase the suit property and an agreement was reduced into writing on 03.11.1988 for the sale of the suit property for a total consideration amount of Rs. 93,101/ - and out of the same, Rs. 28,101/ - was paid by the defendants to the plaintiff. As per the terms of the agreement of sale, defendants were to complete the sale transaction on or before 30.04.1989. Time was the essence of contract and it was specifically mentioned in the agreement of sale that in the event of defendants failing to complete the sale transaction, the advance amount of Rs. 28,101/ - stood forfeited, but nothing was mentioned as regards the possession of the property in the said agreement of sale. The plaintiff further contended that he was in service, away from Belgaum District and he had no occasion to approach the suit property. Taking advantage of this fact, defendants have trespassed upon the suit property. However, after retirement from service, plaintiff went to the suit property in the month of December 2009 with a view to cultivate the suit land; at that time, defendant Nos. 1 to 4 obstructed the plaintiff and for the first time, claimed that they are in possession of the property. The plaintiff further contended that the suit property is standing in the name of the plaintiff, both in ownership column and cultivator's column. However, the defendants are in possession of the suit property. Therefore, the plaintiff has got issued a legal notice on 15.01.2010, asking them to hand -over the actual vacant possession of the suit property and defendants have no right to remain in the suit property. The said notice was not replied by the defendants. Therefore, the plaintiff claimed mesne profits for the past three years amounting to Rs. 32,333/ - per year, totally amounting to Rs. 1,00,000/ - which was legally claimed by the plaintiff and also claims for future mesne profits, from the date of the suit till its realisation, etc.

(3.) The present petitioners, who are defendants, filed the written statement resisting the plaint averments, admitting the agreement and further contended that the defendants have approached the plaintiff expressing willingness to dispose off the suit property; for that proposal, defendants have entered into an agreement of sale, in respect of the suit property, for total consideration amount of Rs. 93,101/ - and out of the said amount, defendants have paid an advance of Rs. 28,101/ - to the plaintiff before the respectable panchas and the same has been incorporated in the agreement of sale dated 03.11.1988. In the said agreement, it was mentioned that, the transaction should be completed on or before 30.04.1989. Inspite of the request made, the plaintiff has not executed the sale deed and the defendants were ever ready and willing to purchase the suit property at any time by paying the balance sale consideration of Rs. 5,000/ - and also contended that the defendants are in actual, peaceful possession and enjoyment of the suit property for the last 23 years, with the consent and knowledge of the plaintiff, etc. Hence, they have prayed for dismissal of the suit.