N KASINATH Vs. ARUN R RAWELL

JUDGEMENT

(1.) THIS appeal arises out of judgment and decree in O. S. No. 1198/1991 dated 28. 7. 2004 passed by the 11th Additional City civil Judge, Bangalore City. The appellant was the plaintiff in the suit and the respondents were the defendants. Since the third respondent died during the pendency of this appeal, his legal representatives have been brought on record.

(2.) THE plaintiff has contended that first defendant is the owner of site bearing No. 26/4 (old site Nos. 31 and 32 laid out in Sy. No. 5/1 of gangehalli Village), K. H. Muniswamappa Block, Gangenahalli, Bangalore, which is more-fully described in the schedule to the plaint (hereinafter referred to as 'schedule site') having purchased the same from J. P. Shastry, under a sale deed dated 23. 4. 1974. The second defendant is the uncle and power of attorney holder of the first defendant. In July/august, 1985, the second defendant represented on behalf of the first defendant that the first defendant is the sole and absolute owner, in possession and enjoyment of the schedule site. The plaintiff was looking for a suitable site to be given to his daughter. On inspection, the plaintiff found that the schedule site is suitable for the said purpose. Therefore, he negotiated with the second defendant for the purchase of the said site. The Terms of sale were concluded between himself and the first defendant represented by the second defendant where-under the plaintiff agreed to purchase and the first defendant agreed to sell the schedule site to him or to his nominee for a total sale consideration of Rs. 1,30,000/. All the terms and conditions of the sale were set out in the agreement dated 6. 9. 1985 entered into between the parties. The plaintiff Jiad paid and the first defendant had received an advance of Rs,30,000/ -. It is further contended that the second defendant had informed him that a Writ Petition in No. 23117/1982 filed by the first defendant challenging the notification for acquisition of the schedule site is pending, and subject to the said writ petition, the first defendant had good marketable title to the schedule site. After the agreement, the plaintiff used to meet the second defendant from time to time and enquire about the progress made in the Writ Petition. On 8. 4. 1987, the second defendant wrote a letter to the plaintiff informing him that second defendant had improved the property at a cost of rs. 60,000/- and to revise the price payable at Rs. 1,90,000/ -. Plaintiff has sent a reply, refusing to pay an additional sum of Rs. 60,000/ -.

(3.) IT is further contended that a mechanic of the second defendant met the plaintiff's son Prem Kumar in August, 1987 and informed him that the second defendant is negotiating with the. third defendant for the sale of the schedule site. When Prem Kumar informed him the same, he sent Prem Kumar to the third defendant to inform him the execution of agreement by defendant Nos. 1 and 2 in favour of the plaintiff in respect of the schedule site. Accordingly, Prem Kumar informed the third defendant about the transaction entered into between the plaintiff and defendant Nos. 1 and 2. It is contended that the third defendant after going through the agreement, thanked Prem Kumar for having informed him about the agreement and assured him that he will not enter into nay transection with defendant Nos. 1 and 2 in respect of the schedule site. On 26. 12. 1989, the plaintiff sent a notice through his Advocate to the first defendant with a copy to the second defendant calling upon them to inform him if the writ petition has been disposed of and to perform their part of their contract by receiving the balance of the sale consideration and execute the sale deed. On 7. 11. 1990, the plaintiff met the second defendant in the head office of the State Bank of Mysore, Bangalore and enquired with him the latest position of the writ petition. The second defendant evaded the question. This made the plaintiff suspicious and he made enquiry about the writ petition and learnt that the Hon'ble High court had quashed the notification impugned in the said writ petition by its order dated 18. 10. 1990 in so far as the same related to the schedule site. Thereafter, the plaintiff met the second defendant and offered to pay the balance of the sale consideration and requested the second defendant to execute the sale deed in terms of the agreement. However, the second defendant refused to executed the sale deed after receiving the balance of the sale consideration. Therefore, the plaintiff issued a notice through his Advocate on 17. 12. 1990 to defendant Nos. 1 and 2 calling upon them to execute and register the sale deed. Defendant Nos. 1 and 2 sent an untenable reply on 12. 2. 1991. In the meantime, Sri Prem Kumar applied for and obtained an encumbrance certificate in respect of schedule site and came to know that defendant Nos. 1 and 2 have sold the schedule site to the third defendant on 8. 11. 1989 itself for a consideration of Rs. 1,90,000/ -. The plaintiff contends that the said sale is not binding on him. It is further contended that the third defendant is not a bonafide purchaser of the schedule site for value without notice of the prior contract. Therefore, he has filed the suit seeking a direction to defendant Nos. 1 and 2 to accept the balance of the sale consideration of Rs. 1,00,000/- and execute a sale deed in respect of the schedule site in his favour. Alternatively, the plaintiff has sought for a direction to the defendant Nos. 1 and 2 to pay Rs. 1,00,000/-towards damages and refund advance amount of Rs. 30,000/- with interest at 18% per annum from the date of the suit till the date of realisation.