V DHAYALAN Vs. MUNISWAMY

JUDGEMENT

(1.) This appeal is directed against the judgment and decree in O.S. No. 370/1999 dated 31.10.2007 on the file of the 17th Additional City Civil Judge, Bangalore City. The appellant was the plaintiff in the said suit and the respondents were the defendants. For the sake of convenience, the parties are referred to by their respective ranking before the Trial Court.

(2.) The subject-matter of the suit is a site bearing No.39 formed in Sy.No.48/1, Haralakunte Hosapalya, Begur Hobli, Bangalore South Taluk (presently No.39, 3rd Cross, Maramma Beedi, Hosapalya, Madivala Post, Bangalore) measuring east to west 30 ft. and north to south 40 ft. bounded on the east by site No.40, west by site No.38, north by 3rd Cross Road (25 ft. wide) and south by private property (hereinafter referred to as 'the schedule property').

(3.) It is the case of the plaintiff that the first defendant is the sole and absolute owner of the schedule property. The first defendant has executed a power of attorney on. 21.8.1999 in favour of the second defendant authorising him to manage/alienate the said property. The first defendant acting through the second defendant offered to sell the schedule property to the plaintiff and the plaintiff; who was in the look out for the purchase of a site, agreed to purchase the same. Accordingly the first defendant acting through the second defendant entered into an agreement of sale dated 2.5.1996 with the plaintiff, agreeing to sell the schedule property for a total consideration of Rs.25,000/- and in furtherance of the said agreement, the second defendant received a sum of Rs.20,000/- towards advance. It is agreed that balance of the sale consideration is payable by the plaintiff at the time of execution and registration of the sale deed. In furtherance of the said agreement, the plaintiff was put in possession of the schedule property and he has been in possession of the said property since then. There was restriction for the registration of revenue lands during the said period. Therefore, a period of two years was fixed under the agreement for execution of the sale deed. The plaintiff has always been ready and willing to perform his part of the contract. But the transaction could not be completed on account of the reluctance of the second defendant to execute the sale deed. The plaintiff approached the second defendant on many occasions requesting him to execute the sale deed by receiving the balance of the sale consideration. However, the second defendant went on postponing the same on one pretext or the other. The plaintiff has laid foundation on the schedule property measuring 15 ft. x 12 ft. for erecting a shed. The first defendant interfered with his possession with the sole intention of selling the same to third parties for higher consideration. Therefore, he has filed the aforesaid suit for specific performance of the agreement of sale dated 2.5.1996. Alternatively, he has sought for a direction to the defendants to refund the advance amount of Rs.20.000/ - together with damages of a similar sum.