MANAWWA AND ORS. Vs. VIVEKANAND AND ORS.

JUDGEMENT

(1.) The defendants in O.S. 152/2006 have preferred this Second Appeal, assailing judgment and decree passed in R.A. No. 81/2011 dated 2.12.2011 passed by the Fast Track Court and Ad -hoc District Judge, Hukkeri, sitting at Gokak, by which, judgment and decree passed by the II Addl. Senior Civil Judge, Gokak, in O.S. No. 152/06 dated 29.01.2011 has been confirmed.

(2.) For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.

(3.) The first respondent is the plaintiff. He filed the suit seeking specific performance of an agreement of sale dated 08.10.2000. That agreement was in respect of immovable property bearing R.S. No. 967/2 comprising of 7 acres 11 guntas of land out of larger extent of land measuring 14 acres 22 guntas of land situated at Yadawad village, Gokak Taluk, Belgaum District. According to the plaintiff, registered agreement to sell the suit property was executed by defendant -1 in favour of plaintiff on 08.10.2000. The sale consideration was Rs. 4,00,000/ -. On the said date a sum of Rs. 3,00,000/ - was accepted as earnest money. Balance amount of Rs. 1,00,000/ - was to be paid at the time of registration of sale deed. Defendant No. 1 had agreed that he had encumbrance to the tune of Rs. 1,60,000/ - against the suit property and that he would execute sale deed within three years from 8.10.2000. That the plaintiff had to bear the cost of stamp duty and registration fee. It was agreed that possession would be delivered at the time of execution of the registered sale deed. That the plaintiff was ready and willing to perform his part of the contract. That there was no willful delay or latches on the part of the plaintiff. That the plaintiff approached defendant No. 1 along with elders with the balance sale consideration with a request to defendant -1 to execute registered sale deed. But according to defendant No. 1 he had not cleared encumbrance on the said property and postponed registration of the sale deed. The plaintiff believed the assurance given by the first defendant that he would eventually execute registered sale deed in favour of the plaintiff, but in vain. Plaintiff then got a legal notice issued through his advocate to defendant No. 1. The said notice was returned unserved with an endorsement that the addressee was not in the village. According to the plaintiff, this postal endorsement was made in collusion with the postman although defendant -1 along with his family was residing in the village. That the wife and children of defendant -1 had filed a suit against him in the year 2003 in respect of the suit property. That suit was compromised. The said compromise was made in order to avoid execution of registered sale deed in respect of the suit property in favour of the plaintiff. That the cause of action for the suit arose on 08.10.2000 and on subsequent dates. Hence, suit was filed seeking the relief of specific performance of agreement dated 8.10.2000.