CHANNAYYA Vs. ANNAPURNA

JUDGEMENT

(1.) THIS appeal by the defendants is directed against the judgment and decree passed by the Court of the Principal Civil Judge (Senior Division), Dharwad, in R. A. No. 104 of 2000, dated 25-7-2003 dismissing the appeal and confirming the judgment and decree passed by the Court of the I Additional Civil Judge (Junior Division), Dharwad, in O. S. No. 688 of 1989, dated 29-9-2000, decreeing the suit of the plaintiff for specific performance of the agreement of sale dated 10-5-1980. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Trial Court are as follows.

(2.) THE plaintiff filed the suit, O. S. No. 38 of 1985 seeking for specific performance of the agreement of sale dated 10-5-1980 averring that defendants 1 and 2 are known to the plaintiff and her husband since a long time. Taking undue advantage of the acquaintance, defendant 1 came to the house of the plaintiff and met her and her husband, somewhere in the month of April 1979 and induced them to purchase his land and he told them that his land is the best land and that he is in financial difficulties and that he does not want it to be sold to others and that by purchase, the plaintiff and her husband will be benefitted and not the others. In this way, he induced the plaintiff and her husband to purchase 2 acres of land out of block No. 135 measuring in all 3 acres 35 guntas and after final talks, it was agreed that the property is to be conveyed for rs. 12,500/- by receiving earnest amount of Rs. 4,500/- and agreement of sale was executed and later, the said transaction culminated in execution of the sale deed dated 20-6-1979. But, at the time of registration, defendant 1 deceived the plaintiff and executed the sale deed in favour of defendant 2 and the plaintiff for the entire land of block No. 135 measuring 3 acres 35 guntas by committing fraud upon the plaintiff and her husband. The plaintiff and her husband came to know of the fraud committed by the defendants in the month of May 1982 when they received the summons from the Court of the Civil Judge, Dharwad, in O. S. No. 49 of 1982. After coming to know of the said fraud, the plaintiff has already filed a suit for declaration and injunction against the defendants 1 and 2. It is further averred that in the month of April 1980, the first defendant came to the plaintiff and her husband and told them that he is again in financial difficulties and he is in need of money and that he would sell the remaining portion in block No. 135 measuring 1 acre 35 guntas for a consideration of Rs. 15,000/- and received advance of Rs. 8,000/- as the earnest money out of the total consideration of Rs. 15,000/- in respect of 1 acre 35 guntas of land in block No. 135 of Govankop Village and possession of the land was also handed over to the plaintiff on the same day as per the terms of the agreement. The plaintiff came to be in possession of the entire extent of land measuring 3 acres 35 guntas of the suit property and since then, the plaintiff has been in possession and enjoyment of the same. It is further averred that in the agreement, a condition was also put that the first defendant shall execute the sale deed after getting permission from the Competent Authority along with other conditions. But, despite the request made by the plaintiff, defendant 1 never turned up to inform the plaintiff that he has obtained permission from the Competent Authority and that he will execute the sale deed as per the terms of the agreement dated 10-5-1980. It is further averred that surprisingly, the fraud committed by defendant 1 did not stop at the level as averred in the plaint and he raised the loan in the Union Bank of India, Dharwad Branch before he executed the sale deed on 20-6-1979 on the security of block No. 135 measuring 3 acres 35 guntas and the said loan was not cleared by the first defendant and O. S. No. 181 of 1980 was filed by the Bank against the first defendant, who remained ex parte and a preliminary decree was passed and thereafter, the final decree was also drawn ex parte. The plaintiff, having learnt that the first defendant is not going to pay the amount and will not attend the Court and ultimately, the interest on the decretal amount would go on accumulating, paid an amount of Rs. 7,162-50 Ps. , in the Court towards the loan of defendant 1 and the plaintiff is entitled for the specific performance of execution of the sale deed in her favour by the first defendant. The plaintiff has also spent for the suit and has to incur further expenses for getting the sale deed registered. The plaintiff will have to spend more than the consideration amount of Rs. 15,000/- and wherefore, she is entitled for recovery of the excess amount spent by her over and above Rs. 15,000/- and more than half of the expenses for registration as 50% of the registration charges has to be borne by defendant 1 as stipulated in condition 4 of the agreement dated 10-5-1980. It is further averred that pending the suit, O. S. No. 181 of 1980, defendant 1 has transferred his another property namely, house bearing Sy. No. 73 in the name of his son, defendant 2 and the plaintiff is entitled for attachment of the said property for recovery of the said excess amount paid and to be spend by her and wherefore, the suit for specific performance of the agreement of sale dated 10-5-1980 and permanent injunction.

(3.) THE suit was resisted by the defendants. The first defendant did not file any written statement. Defendant 2 filed the written statement denying the materials averments made in the plaint regarding the fraud committed by defendant 1 and regarding the pendency of the suit, O. S. No. 49 of 1982 and further averred that the averment made in the plaint that the plaintiff is entitled to specific performance of the agreement of sale dated 10-5-1980 is false and wherefore, the suit is liable to be dismissed.