BASAPPA GACHCHI (SINCE DEAD) BY L.RS AND OTHERS Vs. RABKAVI BANAHATTI CITY MUNICIPAL COUNCIL, JAMKHANDI TALUK, BAGALKOT DISTRICT

JUDGEMENT

(1.) This is a plaintiffs' second appeal. Suit filed to pass a decree for possession was contested. The written statement and an additional written statement was filed. 8 issues and 4 additional issues was raised. P.Ws. 1 and 2 deposed in support of the plaintiffs' case and marked Exs. P. 1 to P. 5. For the defendant, D.Ws. 1 and 2 deposed and marked Exs. D. 1 to D. 11. Learned Trial Judge entered findings 'in the negative' on issues 1, 3 and 5 and additional issues 1, 2 and 4. He entered 'affirmative' findings on issues 2,4 and 6 and additional issue 3. A finding was entered, that the defendant is entitled to protect its possession over the suit schedule property by way of part performance of the contract under Sec. 53-A of the Transfer of Property Act, 1882 (for short 'the Act'). As a result, the suit was dismissed.

(2.) Feeling aggrieved, an appeal having been filed by the plaintiffs, learned Appellate Judge raised the following point for determination:

(3.) The defendant had instituted O.S. No. 321 of 1972 for specific performance of contract against Sri Rachappa Gachchi (father of plaintiffs 1 to 3), on the basis of an agreement of sale dated 22-7-1963. The sole defendant died and the suit abated. Despite entering the finding that Rabkavi Banahatti City Municipal Council is debarred from bringing a fresh suit as per the proviso to Order 22, Rule 9 of Civil Procedure Code, 1908, placing reliance on the decision in the case of Shrimant Shamrao Suryavanshi and Another Vs. Prahlad Bhairoba Suryavanshi (dead) by L.Rs and Others AIR 2002 SC 960 : I (2002) SLT 778 : ILR 2003 Kar. 503 (SC), held that the defendant being an agreement holder is entitled to protect the possession of the property in part performance of the contract as per Sec. 53-A of the Act. As a result, the appeal was dismissed.