GAVIGOWDA Vs. KALEGOWDA

JUDGEMENT

(1.) This is the plaintiffs second appeal under Section 100 of Code of Civil Procedure against the judgment and decree dated 11-9-1986 passed in Regular Appeal No. 29 of 1983, Gavigowda v Kalegowda and Others passed by the Civil Judge, Holenarasipura dismissing the plaintiffs appeal arising out of judgment and decree dated 20-10-1981 passed in O.S. No. 70 of 1978, confirming the judgment and decree of the Trial Court dismissing the plaintiff-appellant's suit for specific performance of contract to execute the sale-deed as well as for injunction.

(2.) The facts of the case in brief are, that the property in suit did originally belong to Bettegowda and Byregowda. According to the plaintiffs case, as Bettegowda and Byregowda were not keeping in good health, they entrusted the plaintiff with the suit schedule property to cultivate the same on wara basis. The plaintiff further alleged that Byregowda sold his share to defendant 1, but possession of the suit property, after the death of Bettegowda and Byregowda continued with the plaintiff-appellant. The plaintiff further alleged that, after the death of Bettegowda and Byregowda the first and second defendants agreed to sell the same in favour of the plaintiff- appellant for sale consideration of Rs. 6,000/- and an agreement to that effect was executed on the same day i.e., on 18-6-1975. The plaintiffs case is that towards sale consideration, a sum of Rs. 5,500 had been paid on that day and the balance of Rs. 500/- was agreed to be paid before the Sub-Registrar at the time of the registration of the document. According to the plaintiff- appellant, he continues to be in possession of the property even after the agreement in question. The plaintiffs case is that, the reconveyance of the property was delayed for the reason that defendants 1 and 2 have to take reconveyance of certain items of the property which had been transferred and conveyed to the defendant 3, according to the plaintiff by nominal sale deed by way of security for the amounts advanced to defendants 1 and 2. The plaintiffs case is that, by issuing notices to the defendants 1 and 2, the plaintiff-appellant called upon them to receive tbe balance amount of Rs. 500/- and to execute the sale deed in compliance of the terms of agreement dated 18-6-1975. The plaintiff further alleged that, defendants failed to comply with the said notice, as such the suit has been filed for specific performance of contract to execute the sale deed in pursuance of the agreement dated 18-6-1975 as well as for injunction restraining the defendant-respondent from interfering with their possession. In the plaint, in addition to defendants 1 and 2, defendants 3 and 4 have also been impleaded. The defendants filed the written statement separately and denied the plaint allegations altogether. In the written statement defendants 1 and 2, specifically, contended and stated that they did not execute the agreement dated 18-6-1975 and the allegation made in the plaint to the effect that defendants have executed the agreement dated 18-6-1975 is incorrect. The defendants further alleged, to the effect, that the sale deed which had been executed in favour of defendant 3 was nominal one and it was executed as the security for the amount advanced has been totally false and incorrect. The defendants denied that the plaintiff was in possession or cultivation of the land in any manner. They denied that plaintiff was a wara tenant. The defendants 1 and 2 stated that they have sold the Survey Nos. 1/3, 47/4, 49/1 and 61/2 and other properties to the fourth defendant by deed dated 12-9-1975 and have given possession of the same to the fourth defendant. The plea of limitation was also raised to the effect that the suit was barred by limitation. Defendants 3 and 4 denied the plaint allegations. According to defendant 3, Byregowda sold his share to defendant 1, they denied the plaintiffs possession as well. Defendant 3 further averred that, by registered sale deed dated 24-5-1974 an area of 17 guntas of Item No. 1 of the plaint schedule was sold by defendants 1 and 2 so as to discharge the mortgage-debt of defendant 2 and Byregowda, and after discharging of the mortgage debt, the defendants 1 and 2 by registered sale deed dated 9-5-1975 sold rest 17 guntas of Item No. 1 in favour of the defendants and as such, defendant 3 became the full owner for 34 guntas of land comprising Item No. 1 and claimed to be in possession. The defendant 3 has stated, since after the written registered sale deed dated 24-5-1974 and 9-5-1975 defendants 1 and 2 lost their rights in the shares of Bettegowda and Byregowda. Defendant 3 denied the agreement of sale dated 18-6-1975 and it is further alleged that the sale deed of agreement itself was prima facie a false and fraudulent document. He has stated that sale deeds executed in his favour conveyed absolute title and interest in Item No. 1 of schedule suit properties and there was no question of any reconveyance. Defendant 3 asserted that agreement dated 18-6-1975 if any, was a bogus and fraudulent one and it did not confer any right on the plaintiff and as such, plaintiff is not in possession of the suit properties, there was no question of plaintiffs possession being disturbed. Therefore, plaintiffs suit is not maintainable.

(3.) Defendant 4 as per pleadings contained in written statement has stated that, Byregowda sold his share of the properties to defendant 1 and that defendant 1 after the death of Byregowda sold the share of Byregowda in Item Nos. 3 to 12 of the plaint schedule properties in favour of defendant 4 vide registered sale deed dated 12-9-1975 and the full consideration of the same has been paid. He claimed to be the owner of those properties except Item Nos. 1 and 2. The fourth defendant has also denied the plaintiffs case that he was in possession of the disputed properties as wara tenant. The defendant 4 alleged that the agreement of sale dated 18-6-1975 was a concocted one and was a fraudulent document. The plea of bona fide purchaser for value without notice was also raised by defendant 4 and the allegation in the written statement was made that the plaintiffs suit was barred by limitation as well, it was not maintainable.