N G VIGNESHAWARA BHAT Vs. P SRIKRISHNA BHAT

JUDGEMENT

(1.) Defendant in a suit for recovery of possession with mesne profits and damages is challenging the decree granted in favour of the respondent/plaintiff by a learned single Judge in A. S. 540/91. Respondent instituted the suit before sub-Court, Kasaragod as an indigent person. Under Ext. A1 agreement for sale entered into by the respondent and appellant, plaint schedule properties were put in the possession of the appellant. The total consideration fixed for the plaint schedule properties was Rs. 33,000/-. The agreement was executed on 1-12-1977. Out of the consideration Rs. 11,000/- had to be paid on 30-4-1978 without interest and Rs. 11,000/-with interest at 10% had to be paid on or before 30-4-1979 and the remaining Rs. 11,000/- with the same rate of interest had to be paid on or before 30-4-1980. It was contended that respondent was ready and willing to execute the necessary sale deed and in fact original of Ext. A2 registered lawyer notice dated 30-9-80 was sent calling upon the appellant to get the sale deed executed after paying the entire sale consideration, appellant did not perform his part of the contract and was not willing to perform it. It was also contended that plaint schedule properties include areca garden which was damaged by the negligence of the appellant and Rs. 25,000/- would be required to restore the garden to its original condition. Respondent has claimed damages for the same. Recovery possession was sought on the strength of his title with mesne profits and damages. Plaint schedule properties are four items. Item No. (1) is 92 cents of Nanja land in R. S. 318/6 and item No. 2 is 2.53 acres of Nanja land in R. S. 324/1 and item No. 3 is 1.35 acres of Nanja land in R. S. 320/5B and item No. 4 is 20 cents of Nanja land in survey No. 320/4. All the properties are in Perdala Village of Kasaragod Taluk. Appellant resisted the suit admitting Ext. A1 agreement but contending that agreement was got executed by making the appellant believe that respondent is the absolute owner of the plaint schedule properties and later Subramonia Bhat and Hrishikesh Bhat brothers of the respondent claimed right over the properties disputing the exclusive title of respondent and due to the dispute appellant requested the respondent to settle the matter between them and execute the sale deed in his favour and inspite of several attempts to settle the dispute, respondent did not settle the same and after issuance of Ext. A2 notice, there was a compromise talk in which respondent, his brothers, appellant and one Parameswara Bhat took part and though respondent agreed to settle the matter, the suit was filed. Appellant contended that he has been ready and willing to perform his part of the agreement and respondent has already received Rs. 15,231/- being part of the sale price and as the agreement is still subsisting and the respondent did not resign from the contract, he is not entitled to claim recovery of possession. It was also contended that no damage was caused to the properties as alleged and respondent is not entitled to the decree for recovery possession or mesne profits. Learned Sub-Judge framed the necessary issues. On the side of respondent, he was examined as PW 1 and on the side of the appellant, he was examined as DW 1. Exts. Al and A4 and Ext. Cl were marked on the side of the respondent and Exts. 81 to 89 were marked on the side of the appellant. The learned Sub-Judge on the evidence found that though respondent claimed absolute right and title to the plaint schedule properties, he has no absolute title over the entire properties mentioned in Ext. A1 and so appellant cannot compel respondent to obtain the sale deed for the plaint schedule properties and from the evidence, it was clear that respondent was not prepared to execute the sale deed after receiving the consideration shown in the agreement and insisted for getting the market price for the properties and there is no evidence to prove that appellant refused to perform his part of the contract and hence respondent is not entitled to the decree sought for. Consequently the suit was dismissed.

(2.) Respondent challenged the decree and judgment before this Court in A. S. 540/91. Learned single Judge on the pleadings and evidence found that respondent was admittedly in possession of the entire properties on the date of Ext. A1 agreement which were put in possession of the appellant under the agreement and appellant did not take steps to get specific performance of the agreement for sale and respondent was not able to execute the sale deed in respect of the entire plaint schedule properties and the contract has therefore become frustrated and as the agreement is not enforceable, respondent is entitled to recover possession of the properties on the strength of his title on his own behalf and on behalf of the co-owners and appellant could defend the claim only under Section 53A of Transfer of Property Act and there is no pleading on that aspect and therefore respondent is entitled to the decree for recovery of possession. The learned single Judge granted a decree for recovery of possession with mesne profits from the date of the suit with a direction to fix the quantum in the execution proceedings. Respondent did not challenge the non-granting of a decree for damages. Defendant has filed this further appeal contending that learned single Judge erred in finding that respondent is entitled to the decree for recovery of possession. It was contended that appellant who was put in possession of the plaint schedule properties under the agreement for sale, cannot be treated as a trespasser and respondent who claimed absolute right over the properties has no such title and he cannot be treated as a co-owner suing on behalf of other owners and in any event even if appellant is a trespasser, respondent is entitled to sue for recovery of possession of only his share in the properties. It was contended that provisions of Section 53A of Transfer of Property Act squarely applies to the case and decree for possession could not have been granted and on the evidence it should have been found that respondent was not ready and willing to perform his part of the contract and appellant is entitled to continue in possession and the decree granted is unsustainable.

(3.) We heard Advocate Sri Sethu-madhavan, appearing for the appellant and Advocate Sri. Balakrishna Iyer appearing for the respondent.