MARIAM HUSSAIN Vs. SYEDANI

JUDGEMENT

(1.) THIS is a second defendants second appeal challenging the concurrent findings recorded by the Courts below that the plaintiff has, established the agreement of sale and therefore he is entitled to the decree for specific performance.

(2.) THE subject-matter of the suit is the land bearing Sy. No. 51, measuring 8 acres and 30 guntas situated in Bellahalli Village, yelahanka Hobli, Bangalore North Taluk. The plaintiffs case is that he is in the possession and enjoyment of the suit schedule property for more than 30 years. The defendant is none other than his elder brother. The defendant managed to secure the pahani entries in respect of the suit schedule property in his name as he was the eldest in the family. On the basis of such entries, he attempted to interfere with the plaintiff's possession. On 16-9-1978, the defendant and his children started felling the casurina trees raised by the plaintiff in the suit schedule property. They also assaulted the plaintiff which resulted in hospitalisation of the plaintiff. Plaintiff preferred a complaint to the police. Investigation was taken up. At that stage, defendant stated that he had obtained a decree against the plaintiff. The plaintiff coming to know of this, made enquiries and then came to know that an ex-parte decree had been passed against him in OS 672/ 73 on 31-7-1978. The plaintiff contended that no suit summons was served on him in the said suit. On the basis of an endorsement of refusal, the decree has been obtained. Plaintiff filed misc. case No. 180/78 for setting aside the said ex parte decree and he is prosecuting the matter. It is during the pendency of the said Misc. case, several well-wishers interested in both the parties, convened panchayath on 18-11-1978 at the village. In the said meeting, the defendant in no uncertain terms admitted that plaintiff alone has been in possession of the suit schedule property. He further under took to execute a sale deed in favour of the plaintiff for a total consideration of Rs. 8000/ -. He received the entire sale consideration of Rs. 8000/- in cash on the same day. The terms of the said agreement are reduced to writing. In terms of the agreement, the plaintiff also purchased the necessary non-judicial stamp papers and requested the defendant to execute the sale deed. The defendant evaded to do so. In view of the aforesaid agreement entered into, the plaintiff contends that the decree passed in OS 672/ 78 is no longer binding on him, it is not enforceable. The defendant is harassing the plaintiff. Police have colluded with the defendant. Therefore the plaintiff is constrained to seek for a declaration about the non-executability of the judgment in OS 672/78. As he has paid the entire consideration under the agreement and the admission by the defendant about the plaintiff's undisputed possession over the property, he is entitled to a decree for specific performance of the agreement. He is always ready and willing to perform his part of the contract. It is the defendant who is evading to perform his part of the contract. Subsequently, the plaintiff filed an amendment application to amend the plaint to bring on record the subsequent event. Subsequent event was that during the pendency of the above suit, with a view to defraud the plaintiff of the fruits of the judgment and decree to be passed in the above case and with ulterior motive, the defendant has sold the plaint schedule property in favour of Mrs. Mariyam Hussain w/o Mr. Zahed Hussain for a sum of Rs. 49. 000/- under a registered sale deed dated 18-8-1982. The said sale deed is not binding on him. The purchaser was made a party to the suit as second defendant. Therefore he sought for a declaration that the decree in OS 672/78 dated 31-7-1978 is infructuous, in executable and no longer binding on the plaintiff and for direction to the defendant to execute the sale deed in terms of the agreement dated 18-11-1978 and for consequential relief of permanent injunction.

(3.) AFTER service of summons, the first defendant entered appearance and filed his written statement. He denied the plaintiff's possession over the schedule property for more than 30 years. It was his specific case that defendant's correct name is Syed Basha and not Pasha. He was a permanent tenant under jodidar Murthuza Sab in respect of the suit schedule land and also other Sy Nos. , as all of them belong to the erstwhile Jodi of bellahalli village. The defendant and the plaintiff had become divided long before and there was no interest of each other in their respective properties. They remained separate and lived separately. They ceased to be family as pleaded in the plaint. The pahanis came to be entered in the name of the defendant as he was and is the actual cultivator of the suit scheduled land. After the abolition of inams in the State of Mysore, defendant filed an application under Section 9 of the Act for grant of occupancy rights of the suit schedule property along with other sy. Nos. 51, 52. 54, 60 and 70. By an order dated 5-7-1965, the Special deputy Commissioner for Abolition of inams, Bangalore, treating the defendant as a permanent tenant, granted occupancy rights, he also waived premiums payable. As the plaintiff did not have any interest in the said property, he did not intervene in those proceedings nor did he challenge the grant of occupancy rights in favour of the defendant, till today. The katha has been made out in his name. He has been paying tax regularly. At the time of the change of katha, the land was actually measured and the suit schedule property measured 8 acres 30 guntas. When the plaintiff who has no right over the property, tried to obstruct the enjoyment of the property by the defendant, he was constrained to file a suit in OS 672/78. The plaintiff refused to receive the suit summons. Service, was held sufficient. After examining the first defendant and his witnesses, the Court granted a decree on 30-7-1978 restraining the plaintiff from interfering with defendants possession over the suit schedule property. No appeal was filed. However, the plaintiff has filed an application under Order 13, Rule 9 of Civil Procedure Code for setting aside the same and it is pending consideration. The order of injunction sought for in the petition was refused. The said decree is fully binding on the plaintiff. The defendant specifically averred that there was no panchayath convened at any time, much has during the proceedings in Misc. Case No. 180/78. The defendant never admitted that the plaintiff has been in possession of the suit schedule land. He never under took to execute the sale deed in favour of the plaintiff for a total sale consideration of Rs. 8000/ -. He has not received any consideration. He has not entered into any such agreement to convey the suit land to the plaintiff. Plaintiff has managed to fabricate the alleged agreement. The suit property is worth more than Rs. 50,000/ -. There is no necessity for him to collude with the police to harass the plaintiff. On a complaint given by the first defendant, police after investigation have filed a charge-sheet against the plaintiff in accordance with law. He further stated that when he came to know that, the plaintiff's name was entered in the RTC Pahanis. he filed a petition to the tahsildar to remove the name of the plaintiff and to enter his name. Accordingly, after enquiry the Tahsildar passed an order restoring the name of the first defendant on 27-6-1981. Aggrieved by the same, plaintiff preferred an appeal before the Asstt. Commissioner which came to be dismissed on 14-9-1981. The appeal against the order of the Deputy Commissioner also came to be dismissed on 5-11-1982. A further revision to the Karnataka appellate Tribunal by the plaintiff was also dismissed. All these clearly go to show that the first defendant is in possession of the property and plaintiff is not in possession. The second defendant also has filed a written statement on similar lines, supporting the first defendant.