ZOHRA Vs. M SUBRAYA BHAT

JUDGEMENT

(1.) THE plaintiff in a suit for specific performance of an agreement for sale of the plaint A schedule property is the appellant in A.S.No.15/1999. In this appeal, he challenges the judgment and decree of the lower court dated August 17, 1998 granting a decree for recovery of the advance amount paid by the plaintiff to defendants under the agreement Ext.A1 against defendants 1 to 4 and 7. A.S.No.1057/1998 is filed by defendants 1 to 9 in so far the trial court granted the decree for recovery of the amount and contending that plaintiff is liable to account for the income received by him from the properties and the same should have been adjusted towards the amount received by the defendants.

(2.) THE case of the plaintiff as testified by him as PW1 before the lower court and as detailed in the plaint in brief is this : Respondents 1 to 10/defendants are the legal heirs of late Isubu Beary who died in 1995. Late Isubu Beary had three wives Beepathumma, Kunhamina ( 4th defendant) and Rukhya ( 7th defendant). Defendants 1, 2, 3 and 10 are the children of Beepathumma. Defendants 5 and 6 are the children of Kunhamina/4th defendant. Defendants 8 and 9 are the children of 7th defendant/Rukhya. 10th defendant had relinquished her right over plaint A schedule properties to late Isubu Beary under Ext.A12 agreement dated 26/01/1994 and therefore on the death of Isubu Beary on 9/2/1995, the said properties devolved on defendants 1 to 9. THEy entered into an agreement to sell the plaint A schedule properties to the plaintiffs for a sale consideration of Rs. 4,50,000/-. THEy received an advance amount of Rs. 2,00,000/-. THE agreement was that defendants 1 to 10 will execute a partition deed allotting plaint A schedule properties to their share and thereafter execute the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs. 2,50,000/-. THE plaintiff has effected improvements in the property worth Rs. 1,50,000/-. Plaintiff has also paid Rs. 43,537/- to discharge the debts of late Isubu Beary in Paivalike Branch of Syndicate Bank. Inspite of repeated requests, defendants 1 to 9 did not execute the sale deed. THE 10th defendant filed O.S.No.81/1995 before the Sub Court to defeat the right of the plaintiff over the property. THErefore, defendants 1 to 9 may be directed to execute the sale deed in respect of plaint A schedule properties after accepting the balance sale consideration.

(3.) THE defendants have filed A.S.No.1057/1998 contending that the trial court should have held that plaintiff is bound to pay mesne profits to the defendants and that plaintiff should have been directed to surrender possession of the plaint A schedule properties on return of the advance amount paid.