ANITHA VAZ Vs. M RANGAPPA

JUDGEMENT

(1.) BY judgment dated 27. 11. 1999 passed by the learned XI addl. City Civil Judge, Bangalore in O. S. No. 92/1994, the appellant's (the plaintiff's) suit for specific performance of the contract has been partly decreed directing the respondent No. 1 (the defendant No. 1)to execute the deed for the sale of joint share of the defendant No. 1 in the suit property. Praying for a decree for grant of relief for the sale of the whole of the property as per agreement, the plaintiff has preferred this appeal.

(2.) THE suit property (i. e. schedule 'a') is H. No. 39/9, Marappa line, Bazar Street, Neelasandra, Bangalore consisting of land and building thereon totally measuring east to west 40 feet, north to south 153/4 feet. Admittedly, the plaintiff was residing in the said premises as the tenant paying rent to the defendant No. 1's elder brother M. Rangaiah; and later to the defendant No. 1, after Rangaiah's death. It is the claim of the plaintiff that the defendant No. 1 offered to sell the said property, i. e. , the property described in Schedule "a" to her for a sum of Rs. 1,00,000/- (Rupees one lakh) to discharge certain debts and after receiving an advance of Rs. 70,000/- (Rupees seventy thousand) executed an agreement on 15-02-1993 in this regard. Execution of the agreement and receipt of advance of rupees seventy thousand - cash of Rs. 15,000/- and cheque for Rs. 55,000/- have been admitted by the defendant No. 1 in the written statement. The sale was agreed to be completed before the end of December 1993. It is alleged by the plaintiff that despite repeated requests and notice by her to the defendant No. 1, the latter did not execute the sale deed, but instead he got a legal notice issued through the advocate for the defendant No. 3 (defendant No. 1's son) making false and frivolous claim to wriggle out of the contract. It is further alleged by the plaintiff that subsequently the defendant No. 1 set up his mother (the defendant no. 4) laying claim of an interest in schedule 'a' property. Alleging that the 1st defendant had sold other properties adjacent to the suit property as the sole and absolute owner of the properties, the plaintiff claimed that the defendant No. 1 was bound to execute the sale deed as per agreement. It was further alleged by the plaintiff that the first, third and fourth defendants, in collusion with the second defendant forcibly entered one room situated at the rear portion of 'a' schedule property and dispossessed her from the portion of that room. The description of that room has been given in 'b' schedule to the plaint. The plaintiff therefore sought for a decree for specific performance of the agreement of sale after receiving balance consideration and delivery of vacant possession of ' B' schedule property. She also prayed for permanent injunction restraining the defendants from interfering with her possession of 'a' schedule property.

(3.) THE defendants 1 and 2 filed a common written statement. While admitting the possession of 'a' schedule property by the plaintiff as tenant and payment of rent by her to M. Rangaiah and later to the defendant No. 1, they admitted the agreement and receipt of advance amount by the defendant No. 1. It was contended that since the property was that of the joint family consisting of five members, the defendant No. 1 had no authority to execute the sale deed and therefore the plaintiff was entitled only to the refund of advance amount. As regards the claim of the plaintiff about forcible eviction from 'b' schedule property, it was simply denied.