N HANUMANTHARAYA Vs. MARIYAMMA

JUDGEMENT

(1.) THIS is the plaintiff's appeal against the judgment and decree dated 23-8-2003 passed in O. S. No. 4624/1992.

(2.) THE suit is one for specific performance of the agreement dated 23-12-1989 by directing defendants 1 to 4 to execute a registered sale deed in favour of the plaintiff and for permanent injunction and cancellation of sale deed dated 28-5-1992, executed by defendants 1 to 4 in favour of defendants Nos. 5 to 8.

(3.) THE case of the plaintiff is that, defendants 1 to 4 are the owners of land measuring 23 guntas in Sy. No. 10/6 of Lottegollahalli village, Kasaba Hobli, Bangalore North taluk. They entered into an agreement of sale with the plaintiff to sell an area measuring 95 feet east-west and 63 feet north-south as described in the schedule, for consideration of rs. 63,500/- on 23-12-1989. The plaintiff paid the entire sale consideration through two cheques bearing Nos. 227941 and 227942 for rs. 50,000/- and Rs. 13,500/- respectively. There was no balance of sale consideration to be paid by the plaintiff. On receipt of the amount, the plaintiff was put in possession of the suit schedule property under agreement dated 23-12-1989 and plaintiff is in possession of the suit schedule property, his name is entered in the R. T. C. Defendants 1 to 4 have executed the power of attorney in favour of the plaintiff and further they have also sworn to an affidavit in this regard. The plaintiff demanded execution of the sale deed, however, the defendants 1 to 4 did not execute the sale deed. It is on 15-7-1992, defendant No. 5 along with her husband and other persons came near the suit property stating that the suit schedule property belongs to them, the plaintiff told defendant No. 5 that he is in possession of the suit schedule property by virtue of agreement. Plaintiff had the benefit of temporary injunction and defendant No. 5 filed an application for vacating the temporary injunction and initiated proceedings before the tahsildar, Bangalore North Taluk for change of khata and to enter his name. It is at that juncture, plaintiff came to know about the registered sale deed dated 25-5-1992 executed by defendants 1 to 4 in favour of defendants 5 to 8 in respect of 12 guntas of land in Sy. No. 10/6 of Lottegollahalli Village. It is alleged by the plaintiff that defendants 1 to 4 in collusion with defendants 5 to 8 have fraudulently created the sale deed with an intention to deny the legitimate right of the defendants. After coming to know of the sale transaction between defendants 1 to 4 and 5 to 8, defendants 5 to 8 were impleaded on parties to the suit, plaintiff also alleged that he was always ready and willing to complete his part of the contract and that defendants deliberately have not executed the sale deed. On these allegations, the plaintiff sought for decree for specific performance of the agreement of sale.