SIRASAWWA Vs. LAXMAN ECHARAPPA BADIGER

JUDGEMENT

(1.) The judgment and decree dtd. 1/8/2001 passed by the Civil Judge (Jr. Dn.), Basavana Bagewadi in O.S. No.308/1995 and the judgment and order dtd. 6/12/2005 passed by the Civil Judge (Sr. Dn.), Basavana Bagewadi in R.A. No.131/2003 are called in question by the appellant defendant in this second appeal. The appellant herein has challenged the legality and correctness of the judgments of the Courts below on the grounds as mentioned in the appeal memorandum.

(2.) The respondent plaintiff filed the suit for specific performance against the appellant and the other respondents contending that the appellant, who was defendant No.1 in the said suit, so also defendant No.5 before the trial court both offered the suit schedule property for sale and they came to the village of respondent No.1 plaintiff and in the presence of the elders, talks took place. Defendant Nos.1 and 5 offered to sell the suit property for the amount of Rs.33,000.00 for which the plaintiff accepted the said offer and agreed to purchase the said property and accordingly executed an agreement of sale in respect of the said property on 23/9/1987. It is the further case of respondent No.1- plaintiff that out of the agreed amount of Rs.33,000.00, an amount of Rs.20,000.00 was paid to defendant Nos.1 and 5 as earnest money and it was agreed by defendant Nos.1 and 5 that they will execute the registered sale deed in respect of the said land by receiving the remaining consideration after final disposal of the suit with regard to the suit land pending before the land tribunal. Defendant No.2 also executed an agreement consenting for agreement of sale executed by defendant Nos.1 and 5 on 9/3/1988 in favour of the plaintiff. It is informed to the plaintiff that defendant Nos.3 and 4 have no interest over the suit land as it was inherited by their sisters from their mother and it is for this reason the plaintiff did not insist defendant Nos.3 and 4 to execute agreement of sale in respect of the suit land in his favour. The further averments is that the plaintiff has been put into the actual possession and enjoyment of the suit land since from the date of agreement of sale and he is personally cultivating the said land till today. The relationship between defendant Nos.1 and 5 was strained due to the family dispute and at that time, defendant No.1 filed suit in O.S. No.08-104/1988 in respect of the suit schedule property against the plaintiff and defendant No.5 seeking permanent injunction which was subsequently came to be dismissed for non- prosecution. The plaintiff enquired about the execution of sale deed with defendant Nos.1, 2 and 5, but they assured the plaintiff that they will execute the sale deed after settlement of the dispute and they received further consideration amount i.e., defendant No.2 received Rs.3,250.00 and defendant No.5 received Rs.6,500.00 from the plaintiff and executed receipts to that effect. Though the plaintiff requested the defendants to execute the sale deed, the defendants went on postponing on one or the other reasons. The plaintiff got issued notice on 18/7/1994 calling upon the defendants to execute the registered sale deed and the defendants did not reply to the said notice nor they come forward to execute the agreement of sale. Hence, the plaintiff filed the said suit.

(3.) Defendant Nos.1, 2 and 5 appeared before the Court and defendant Nos.3 and 4 remained absent and they have been placed ex-parte. Defendant Nos.1 and 2 filed a separate written statement. Defendant No.1 contended that the allegations made in the plaint are false. But it is admitted that the suit schedule property was originally belonged to one Kalavva and the said Kalavva had no male issues. After her demise, it was only her daughters Devakavva and defendant No.5 succeeded to the said land as legal heirs. The suit land jointly. It is further contended by defendant No.1 that she is the only daughter of Devakavva. The deceased Devakavva had no other sons or daughters except defendant No.1. It is denied that defendant Nos.2 and 4 are also the daughters of Devakavva. Defendant No.2 filed a vardi before the village accountant, Mangoli that her name shall be entered in the R/R suit land claiming that she is the sister of defendant No.1. Enquiry was held but her contention was rejected. Against the said order, an appeal was preferred before the Assistant Commissioner, Bijapuar, which was also dismissed. It is also denied that defendant Nos.1 and 5 executed the agreement of sale in favour of the plaintiff agreeing to sell the property for Rs.33,000.00. It is denied that earnest money of Rs.20,000.00 was received. It is further contended by defendant No.1 that defendant No.5 herself have got half share each in the suit land. Herself and defendant No.5 are in the joint possession of the suit land. It is denied that defendant No.1 executed an agreement of sale dtd. 23/9/1987 in favour of the plaintiff. Thumb impression in the agreement of sale does not belong to defendant No.1. It is further contended that since defendant No.1 used to put her signature by signing, the question of thumb impression does not arise and she never put thumb impression on the agreement. The plaintiff got created the bogus agreement of sale in favour of defendant No.1. It is further contended that since the plaintiff got executed the sale deed from defendant No.5 in respect of half share in the suit land for Rs.48,000.00, the sale deed is bad in law as no permission of the Court was sought in view of the pendency of the suit. The agreement was concocted and bogus.