RADHA BAI W/O UTTAMARA GAONKAR SINCE DECEASED BY HER LEGAL REPRESENTATIVES PREMABAI W/O. MOHAN GAONKAR, MANJUNATH S/O. MOHAN GAONKAR AND SHEETAL D/O. MOHAN GAONKAR Vs. SANGAWWA W/O SIDDAVEERAYYA GUDDADAMATH AND OTHERS

JUDGEMENT

(1.) THIS Second Appeal under Section 100 of the Code of Civil Procedure is by the first defendant in OS No. 9 of 1991 on the file of the court of the Principal Civil Judge (Jr. Dn.,] Dharwad who has suffered a decree for yielding possession in favour of the plaintiffs in the suit and which Judgment and decree came to be affirmed by the lower appellate court in RA No. 42 of 1998 on the file of the II Additional Civil Judge [Sr. Dn.,] Dharwad.

(2.) IT is because of such concurrent failures, the present second appeal.

(3.) IT is also the further plea in the plaint that though the first defendant had been put in possession of the subject property under the agreement dated 20.3.1975, the first defendant had not chosen to get regular sale deed executed in her favour till the filing of the suit; that as there were some differences amongst the first defendant and defendants 2 to 5 on the other side, defendants 2 to 5 had filed OS No. 37 of 1983 as on 8.2.1983 on the file of the Principal Munsiff, Dharwad, impleading the first defendant as party, for a declaration that the so called deed of agreement for sale is not agreement for sale but is only mortgage transaction and had sought for declaration to this effect; that the said suit came to be dismissed as withdrawn on 25.2.1989 with liberty to the plaintiffs therein to file a fresh case and after withdrawal of the suit there were some attempts to settle the matter amongst the parties and though the first defendant had even agreed to deliver possession of the suit schedule property, but that having not happened and the agreement dated 20.3.1975 not binding on the plaintiffs, the plaintiffs have filed a suit for recovery of possession as the first defendant though was called upon to hand over possession had not delivered possession and therefore it became necessary to file the suit.