PUTTARAMAIAH Vs. THIMMAIAH

JUDGEMENT

(1.) THIS appeal is by the plaintiff before the trial court and although the suit filed by him in O. S. No. 64/1993 came to be allowed by the trial Court in part, the appeal preferred by the respondents herein came to be allowed by the lower Appellate Court in R. A. No. 15/2000 and the judgment and decree passed by the trial Court was set aside and the suit was dismissed. Aggrieved by the said judgment and decree of the lower appellate Court, this second appeal is preferred by the plaintiff.

(2.) THE facts fall within a very narrow compass inasmuch as the appellant filed a suit for specific performance basing on an agreement of sale dated 16-12-1992 executed by the respondent-defendants and it is the case of the appellant that the respondents-defendants agreed to sell the property, which was the subject mater of the agreement of sale, for rs. 75,000. 00 and received Rs. 55,000/- from the appellant under the said agreement. However, the first respondent-defendant failed to keep up his promise as per the agreement terms giving rise to the appellant filing the present suit in O. S. No. 64/1993 seeking specific performance of the agreement of sale or in the alternative, to direct the respondents-defendants to pay Rs. 55,000. 00 to him along with interest at 18% per annum. The said suit was resisted by the respondents-defendants and written statement was filed by the first defendant denying the plaint allegations in toto and the defence plea set up by them was that the plaintiff took the signature of the first defendant on a blank paper in order to get the khatha transferred to the name of the first defendant and excepting this one transaction, the first defendant never executed the agreement of sale as per ex. P-1 at any point of time and the other contention taken was that the suit property in question was never owned by the first defendant, but it was the second defendant, who was his brother, who became the owner of the suit property following a division among the family members in the year 1985.

(3.) THE learned judge of the trial Court framed as many as five issues and held that the appellant herein had proved the agrement of sale dated 16-12-1992 executed by the first respondent-defendant and also of having received Rs. 55,000/- under the said agreement. The trial Court also found that the appellant was ready and willing to perform his part of the contract but however, as far as the grant of specific performance is concerned, the trail Court found that the first defendant was not in a position to execute a registered sale deed in terms of Ex. P-1 because, the suit property stood exclusively in the name of the second defendant. Under the said circumstances, the trial Court thought it just and proper to direct the first defendant to refund the earnest money to the appellant herein with interest at 18% per annum from the date of agreement till the date of realisation and the relief of specific performance of contract however was not granted and the suit was also dismissed as against the second defendant.