Bangalore District Court
Sri. Surendra Babu vs Sri. Anjanappa on 9 January, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE (C.C.H.No.8)
Dated this the 9th day of January 2015.
PRESENT: SRI.S.V.Kulkarni, B.Com., LLB(Spl).
XI Addl.City Civil Judge, B'lore city.
O.S.No.8/2003
Plaintiff : Sri. Surendra Babu,
S/o V.Ramaiah,
Aged about 38 years,
R/at No.49, Kaggadasapura,
C.V.Raman Nagar Post,
Bangalore - 560 093.
(By Sri. L.M.N. advocate)
: Vs :
Defendant : 1. Sri. Anjanappa,
Aged about 50 years,
2. Sri. Govinda Raju,
Aged about 45 years,
3. Sri. B.N.Krishna Murthy,
Aged about 41 years,
Defendants No.1 to 3 are the sons of
Late Sri. Narasimhaiah, all are
r/at No.62, Motappa Compound,
Byrasandra Village, Sir C.V.Raman
Nagar Post, Bangalore - 560 093.
(By Sri.V.C.J., for D1 & D2
and D3 is placed Exparte )
2 O.S.No.8/2003
Date of the institution of suit : 01.01.2003
Nature of the suit : Specific performance
Date of the commencement of
recording of the evidence : 04.07.2005
Date on which the judgment
was pronounced : 09.01.2015
Total duration: Year/s Month/s Day/s
12 0 08
XI ADDL.CITY CIVIL JUDGE,
BANGALORE.
JUDGMENT
This is a suit fioled by the plaintiff against defendants No.1 to 3 for the relief of specific performance of contract in respect of alleged agreement of sale dated 30.3.1992 executed by defendant No.1 to 3 in respect of suit schedule property as described in the plaint and plaintiff has prayed for grant of relief of possession and for other reliefs including the costs of the suit.
2. The subject matter of the alleged agreement of sale relied by the plaintiff dated 30.3.1992 is in respect of the schedule property as described under:-
3 O.S.No.8/2003SCHEDULE All that piece and parcel of the vacant land in Sy.No. 118/1B, measuring 0.30 guntas situated at Benniganahalli village, K.R.Puram Hobli, Bangalore South Taluk now East Taluk and bounded by on the:-
East: Narayanappa and Muniyappa's property; West: water drain;
North: Nanjundappa's property, now in possession and ownership of Sri. B.N.Krishnappa;
South: Nanjundappa's property now in possession and ownership of Sri. B.N.Krishnappa It is alleged by the plaintiff that defendant No.1 to 3 are the brothers inter-se and are co-owners of agricultural land bearing Sy.No.118/1B situated at Benniganahalli village, K.R.Puram Hobli, Bangalore South Taluk, defendant No.1 to 3 entered into an agreement of sale with plaintiff on 30.3.1992 agreeing to sell 30 guntas of land ( ¾ acre) of land in Sy.No.118/1B for total sale consideration amount and mutually agreed for Rs.8,40,000/-, which is free from all encumbrances, charges, liens etc., The plaintiff further alleged that under the said agreement of sale, the defendant No.1 to 3 have received a sum of Rs.2-00 lakhs towards earnest money on 30.3.1992 and on the very day, the 3rd defendant took sum of Rs.1-00 lakh from the plaintiff, promising to repay the said amount within 5 months period and if defendant No.3 fails to repay the said amount within 5 months period, then the 4 O.S.No.8/2003 said amount paid by the plaintiff shall have to be treated as part sale consideration amount payable under this suit document dated 30.3.1992 and to this effect, defendant No.2 has executed an agreement in favour of plaintiff. The plaintiff also alleged that the defendants have agreed to convey the registered sale deed within 11 months time as fixed under the terms of agreement of sale. The plaintiff is known to the defendants, wherein the plaintiffs native village is nearer to the defendants' native village and in this regard, the plaintiff approaching the defendants frequently as defendant No.1 to 3 are residing in neighbourly village of the plaintiff and plaintiff disclosing his readiness and willingness to get the sale transaction concluded to the defendants and also requested them to fix the date of sale deed to be executed by them and defendants, who were quite in cordial terms with the plaintiff and assuring and promising that they are making arrangements to execute the sale deed by receiving balance sale consideration amount of Rs.1-00 lakh and hence, plaintiff averred in his pleadings regarding readiness and willingness in obtaining the sale deed from the defendants, the plaintiff requested the defendants to execute the sale deed in the month of December 1992 and defendants should not give any more excuses and they should fix the date of registration of the sale deed, at that time, for the first time, the defendants revealed that one Varadaraju and others have filed the suit against the defendants and their mother in respect of suit schedule property in O.S.No.5328/1990 on the file of City Civil Court , 5 O.S.No.8/2003 Bangalore and in that suit, there was interim order of injunction passed restraining the defendants from alienating the suit schedule property and not to create any 3rd party interest and therefore, the defendants are not in a position to execute the registered sale deed, wherein the defendants have promised the plaintiff of execution of sale deed soon after vacating injunction order is granted in O.S.No.5328/1990. The plaintiff in this regard frequently enquiring with the defendants the stage of O.S.No.5328/1990 and also whether interim order of injunction is vacated or not and since defendants 1 to 3 are in cordial terms with the plaintiff, wherein they repeatedly told the plaintiff not to worry and they will inform soon after vacating the injunction order, but defendants did not informed about the vacating of temporary injunction order as granted in O.S.No.5328/1990 and they postponed the execution of sale deed and defendant No.1 to 3 approached the plaintiff in the month of September 1996 and requested him to pay further advance amount and the plaintiff acceded to the request of the defendants, paid a sum of Rs.24,000/- on 27.09.1996 as further advance in respect of alleged agreement of sale dated 30.3.1992. The plaintiff subsequently learnt that the suit filed by Varadaraju in O.S.No.5328/1990 against defendants and their mother came to be dismissed on 18.3.2002 as not pressed and thereafter, plaintiff met the defendants and requested them to execute the sale deed showing his readiness and willingness, but defendants gave an evasive answer and plaintiff by enquiry 6 O.S.No.8/2003 learnt that the defendant No.1 and 2 are trying to sell the suit schedule property in favour of one Srinivas of K.R.Puram, Bangalore and thereafter plaintiff got issued legal notice to the defendants on 10.6.2002 demanding execution of sale deed and plaintiff also informed the defendants in the said legal notice regarding his readiness and willingness to pay the balance sale consideration amount and there is no impediment for the defendants to execute sale deed and thought defendants have received the legal notice caused by the plaintiff dated 10.6.2002, wherein defendant No.1 and 2 have replied the said legal notice by their letter dated 22.7.2002, wherein defendant No.1 and 2 have denied the execution of sale agreement and have given false reply, whereas 3rd defendant received the legal notice dated 10.6.2002 and he replied the said notice vide reply notice dated 2.8.2002, wherein defendant No.3 had admitted execution of sale agreement in favour of plaintiff and he agreed to execute the sale deed and defendant No.3 has received a sum of Rs.60,000/- from the plaintiff consisting of Rs.45,000/- paid by way of cash. Subsequently, 3rd defendant met the plaintiff and assured him that plaintiff should wait some more time before rushing to the court that he confident that he will convince defendant No.1 and 2, who are her brothers to execute the sale deed, but defendant No.3 during last week informed the plaintiff that his efforts to convince the defendant No.1 and 2 has not yielding any result and plaintiff has to approach the court of law in seeking specific performance and 7 O.S.No.8/2003 hence, plaintiff constrained to file the suit seeking the relief of specific performance of contract against defendant No.1 to 3 and plaintiff has disclosed cause of action as stated in para No.16 of the plaint stating that cause of action for the suit arose on 30.3.1992, the date of execution of sale agreement and further on 27.9.1996 when defendants have received further advance amount of Rs.24,000/- and subsequently after dismissal of O.S.No.5328/1990 on 18.3.2002 and thereafter defendant No.1 and 2 have denied execution of sale agreement by their reply notice dated 22.07.2002. Hence plaintiff alleging these dates of cause of action to file the suit for specific performance has filed this suit against defendant No.1 to 3 and prayed for specific performance relief in respect of suit schedule property and also sought direction to the defendants for execution of registered sale deed after receiving balance sale consideration amount and also plaintiff has sought for relief of possession in respect of suit schedule property from defendant No.1 to 3.
3. In response to the suit summons issued in this case, wherein defendant No.1 and 2 appeared through counsel and filed the written statement and though defendant No.3 served with suit summons, but defendant No.3 remained exparte and accordingly, defendant No.3 is placed exparte in this suit on 28.7.2003. The defendant No.1 and 2 have put in their defence to answer the claim of plaintiff, wherein defendant No.1 and 2 have admitted that they are the co-0wners of agricultural land 8 O.S.No.8/2003 bearing Sy.No.118/1B of Benniganahalli village, K.R.Puram Hobli, Bangalore South Taluk. But defendant No.1 and 2 have denied the execution of sale agreement dated 30.3.1992 with plaintiff agreeing to sell 30 guntas of agricultural land in Sy.No.118/1B for sale price of Rs.84,000/- and defendants further denied the receipt of Rs.2-00 lakhs from the plaintiff towards part consideration amount and defendants called upon the plaintiff to prove the allegations made in para No.3 of the plaint by proving the said facts by the plaintiff. The defendant No.1 and 2 contended that the transaction as alleged by the plaintiff is in respect of loan transaction, which clearly establishes that plaintiff is doing money lending business too poor farmers and taking signatures on blank papers, wherein defendant No.1 and 2 contended that they had obtained loan of Rs.75,000/- from the plaintiff and at that time, plaintiff had obtained their signatures on blank papers and plaintiff has misused the said blank papers, which are signed by defendant No.1 and 2 and now created the alleged agreement of sale dated 30.3.1992, wherein defendant No.1 and 2 further contended that they have repaid the loan to plaintiff on 10.11.1998 with interest and though these defendants have repaid Rs.1,25,000/- as full and final settlement of loan transaction on 10.11.1998 to the plaintiff and at that time, plaintiff agreed to return the blank papers, which are obtained at the time of lending a loan and in this regard, the plaintiff did not return the documents to the defendants, wherein defendant No.1 and 2 have made letter 9 O.S.No.8/2003 correspondence to the plaintiff on 1.2.1999 seeking return of blank documents, but plaintiff did not responded to the written communication made by the defendants seeking return of documents. The defendant No.1 and 2 could not quarrel with the plaintiff as he is a rich and powerful person and hence, the plaintiff did not return the documents. The transaction of available of Rs.1-00 lakh from the plaintiff on 30.3.1992 is a different transaction, which is independent transaction with plaintiff. Defendants admits that the plaintiff and defendants are residing closes by village and defendant No.1 and 2 have denied plaintiff's readiness and willingness to complete the alleged sale transaction and also defendants specifically denied that they assured and promised to execute the sale deed in favour of plaintiff and defendants specifically denied that they promised to execute the sale deed after vacating injunction order in the suit filed by Varadarajan and others in O.S.No.5328/1990 and defendants also denied that plaintiff approached them in the month of September 1996 and requested the plaintiff to pay further advance amount of Rs.24,000/- and defendants have specific performance denied the receipt of Rs.24,000/- from the plaintiff on 27.9.1996 and defendant No.1 and 2 further contended that O.S.No.5328/1990 was with drawn after execution of registered partition deed amongst members of the joint family and defendants have denied specifically that plaintiff approached them and sought for execution of sale deed. The defendant No.1 and 2 contended that they have replied the 10 O.S.No.8/2003 legal notice caused by the plaintiff dated 10.6.2002 and whereas the 3rd defendant is having loan transaction with plaintiff and plaintiff by threat seems to have got admission from the 3rd defendant with ulterior motive regarding agreement of sale and hence, defendant No.1 and 2 have nothing to do with 3rd defendant in receiving any amount from the plaintiff. Hence, the alleged admission by defendant No.3 in his reply notice regarding alleged agreement of sale does not bind the interest of these defendants. Defendant No.1 and 2 have never executed any sale agreement in respect of suit schedule property in favour of plaintiff. On the contrary, the suit property, which is very valuable property, wherein defendants will be put to heavy and irreparable loss, injury, injustice would caused to the defendants, if specific performance decree is passed directing the defendants to execute the sale deed. On the contrary, the plaintiff with ulterior motive and in order to knock off the schedule property has filed this suit and schedule property is not the individual property of the defendant No.1 and 2 and it is joint family property having joint interest of defendants and other co- owners. The plaintiff, who is practicing advocate and has created the suit agreement dated 30.3.1992 with ulterior motive and defendants further contended that even otherwise without admitting the execution of sale agreement dated 30.3.1992, the defendant No.1 and 2 contended that the suit is barred by limitation and also denied the cause of action as denied by the plaintiff and the cause of action alleged in the 11 O.S.No.8/2003 plaint is created and imaginary and suit is filed after long lapse of limitation and defendant No.1 and 2 have specifically denied the receipt of amount as alleged by the plaintiff in para No.16 of the plaint. And also defendants have specifically denied the execution of alleged sale agreement in favour of plaintiff in respect of suit schedule property. Hence, defendant No.1 and 2 on these defence resisted the suit filed by the plaintiff and prays to dismiss the suit with costs in the interest of justice and equity.
4. Based upon these rival pleadings, the following issues have been framed for trial of this court on 1.12.2003:-
1. Whether the plaintiff proves that the defendants were agreed to sell the suit property for Rs.8,40,000/- & executed an agreement of sale dated 30.03.1992 by receiving a sum of Rs.2 lakhs as advance ?
2. Whether the defendants No.1 and 2 proves that the plaintiff has taken their signatures on a blank stamp papers in connection with the loan transaction ?
3. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contract ?
4. Whether the suit is barred by limitation ?
5. Whether the plaintiff is entitled for the relief of Specific Performance ?12 O.S.No.8/2003
6. Whether the plaintiff is entitled for the relief of possession ?
7. What order or decree ?
5. In order to prove the above issues, the parties to the suit have entered trial, wherein plaintiff himself is examined as P.W.1 and got marked Ex.P.1 to P.9 and with this evidence, plaintiff closed his evidence and thereafter, defendant No.2 is examined as D.W.1 and in his evidence, documents Ex.D.1 to D.21 are came to be marked. With this evidence, defendant No.1 and 2 have closed their evidence in the above suit and thereafter, the suit is posted for arguments.
6. I have heard the of learned counsel appearing for the plaintiff and learned counsel appearing for defendant No.1 and 2 and also perused the citations relied by the counsel for plaintiff and also perused the written synopsis filed on behalf of defendant No.1 and 2 and also perused and considered the citations relied by the counsel for defendant No.1 and 2 in support of defence arguments addressed in this case.
In support of his case the advocate for plaintiff has relied upon the following decision:-
1. 2006 AIR SCW 162 (State of Maharashtra Vs. Rashid Babubhai Mulani) In support of his case, the counsel for defendant No.1 and 2 has relied the following decisions:-13 O.S.No.8/2003
1) 1987(2) K.L.J 57 (Mahaboob Pasha @ Bashan Just and necessary Vs. Syed Zaheeruddin and others)
2) High Court of Madras: S.A 1984/1999:
(K.Loganathan Vs.P.Karupanna Goundar);
3) AIR 2011 S.C 2057(Vimaleshwar Nagappa Shet Vs. Noor Ahmed Sheriff);
4) 2005 AIE SCW 1426 ((Shanmughasundaram and others Vs. Diravia Nadar (Dead) by L.Rs and another);
5)AIR 202 Mad 131(P.Retnaswamy Vs. A.Raja and another);
6)ILR 2005 Kar 2421(K.Narayana Reddy Vs. Ramakrishna Reddy);
7) AIR 2007 Guj 56 ( Husenabibi and another Vs.Abdulmiya Kasammiya Kureshi and others);
8) Civil Appeal No.104/1997( T.L.Muddukrishna and another Vs. Smt. Lalitha Ramachandra Rao)
9) RFA 1424/2005 (Basappa Munoli Vs.Balraj Mittal )
10) 2011(3) KLJ 640(DB) K.L.Sathyaprakash and antoher Vs. Kothari Motors Limited , Mysore)
11) R.S.A No.1327/2006 (S.Shylesh Kumar Vs. Smt. Radhamma since dead by her LRs ) 14 O.S.No.8/2003
12) R.S.A No.1792/2009( S.H.Muniyappa Vs. Subba)
13) C.A.No.1535/2011( Pramod Builders and Developers (Plaintiff) Ltd., Vs. Shantha Chopra)
7. After appreciation of the pleadings, appreciation of oral and documentary evidence placed on record that of P.W.1 and Ex.P.1 to P.9 and that of D.W.1 and Ex.D.1 to D.21 and considering the argument contention of both sides and considering the citations referred in this suit by the respective counsel and also considering the written synopsis filed by defendant No.1 and 2 in this suit, I answer the above issues are as follows:-
Issue No.1 In negative
Issue No.2 In affirmative;
Issue No.3: In negative;
Issue No.4 In affirmative;
Issue No.5 and 6: In negative
Issue No.7: The suit filed by the plaintiff
against defendants deserves to
be dismissed for the following
reasons:-
REASONS
9. Issue No.1 to 3: Since these issues are
interconnected to each other and in order to avoid repetition of 15 O.S.No.8/2003 facts and evidence, Issue No.1 to 3 have been taken up for discussion together. However separate findings are recorded on these issues. It is the specific case of plaintiff that defendant No.1 to 3 are the brother inter-se and the residents of neighbouring village at Benniganahalli village and plaintiff will acquainted with defendant No.1 to 3 since long years ago as they are residing in neighbouring village, wherein defendants for their family necessity and for legal necessity offered to sell the suit schedule property i.e., land Sy.No. 118/1B situated at Benniganahalli village . K.R.Puram Hobli, Bangalore South Taluk measuring 30 guntas of land approximately 3/4th acre of land and after due negotiations held between plaintiff and defendants, wherein defendants have agreed to sell the schedule land for sale consideration amount of Rs.8,40,000/- and after conclusion of sale talks, the defendant No.1 to 3 have executed sale agreement in favour of plaintiff on 30.3.1992 and on the date of execution of sale agreement, defendant No.1 to 3 have received an amount of Rs.2-00 lakhs paid by the plaintiff as earnest amount in the presence of witnesses for the said agreement and defendants agreed to convey registered sale deed by receiving balance sale consideration amount of Rs.6,40,000/- and period under the agreement of sale was for 11 months and it is the case of the plaintiff that defendant No.3 on the very day of execution of sale agreement i.e., 30.3.1992 had received amount of Rs.1-00 lakh as loan from the plaintiff and defendant No.3 had agreed to repay the said sum to the plaintiff within a period of 16 O.S.No.8/2003 5 months and in case, defendant No.3 failed to repay the said amount, then there was understanding between defendant No.3 and plaintiff that Rs.1-00 lakh was to be treated as further payment of part consideration amount and it was adjusted against the balance sale consideration amount to be paid to the defendants and the said amount of Rs.1-00 lakh was adjusted in the share of defendant No.3. It is further case made out by the plaintiff that he has paid Rs.24,000/- as additional payment on 27.9.1996 and he demanded the defendants to execute sale deed, wherein defendants have assured the plaintiff that there is pendency of O.S.No.5328 of 1990 filed by one Sri. Varadaraju son of Veerappa against the father of defendant No.1 to 3 and other defendants, which was pending on the file of CCH No.11 and defendants assured the plaintiff of execution of sale deed soon after vacating of injunction order granted in that suit and plaintiff came to know about the disposed of suit filed by Varadaraju in O.S.No.5328 of 1990 on 18.3.1992 and plaintiff also stated that defendant No.1 had received further payments made by him of Rs.60,000/- by way of D.D consisting of Rs.45,000/- and by way of cash of Rs.15,000/- and in this regard defendant No.1 had admitted in his reply notice dated 2.8.2003 and plaintiff further alleged that when he came to know about the dismissal of suit in O.S.No.5328 of 1990 on 18.3.2002 as informed by defendant No.3, plaintiff caused demand notice dated 10.6.2002 against defendant No.1 to 3, wherein defendant No.1 and 2 have received the said notice 17 O.S.No.8/2003 and replied the notice on 22.7.2002, wherein defendant No.1 and 2 have denied the execution of sale agreement and whereas defendant No.3 admitted the sale agreement executed on 30.3.1992 and defendant No.3 expressed his readiness and willingness to execute the sale deed in his reply notice dated 2.8.2003. Hence, plaintiff alleging cause of action arose to him to file the suit after issuance of legal notice Ex.P.6 dated 10.6.2002 and after reply notice issued by defendant No.1 and 2 as per Ex.P.7 dated 22.7.2002 and reply notice of defendant No.3 as per Ex.P.8 dated 2.8.2002, wherein defendants have denied the execution of sale agreement and also denied the specific performance relief and it is the specific case of the plaintiff that there was an injunction order granted in O.S.No.5328 of 1990 against the defendants and schedule property was included in that suit and hence, he was prevented from injunction order in filing the suit and hence plaintiff alleging cause of action after receipt of reply notice Ex.P.7 and P.8 has filed this suit. The defendant No.1 and 2 appeared and filed their written statement, wherein defendant No.3 inspite of service of suit summons, he remained absent and accordingly, defendant No.3 is placed exparte in this suit. Defendant No.1 and 2 in their reply notice Ex.P.7 have denied the case of the plaintiff and on the contrary, defendant No.1 and 2 have taken specific plea that they have raised loan from the plaintiff and they have repaid the loan with interest on 10.11.1998 and defendant No.1 and 2 have contended that they have received hand loan of Rs.75,000/- during the month of December 1991 18 O.S.No.8/2003 and at that time, the plaintiff had obtained the signatures of defendants on blank stamp papers and plaintiff had agreed to return the stamp papers, which were obtained from the defendants after discharge of loan, but plaintiff inspite of letter correspondence and after repayment of loan with interest, wherein plaintiff failed to return the documents and as such, plaintiff has manipulated the suit agreement by misusing the stamp papers, which are in his custody and as such, defendant No.1 and 2 have denied the execution of Ex.P.1 in real since as sale agreement in respect of schedule property and on the contrary, defendant No.1 and 2 have taken specific defence that it is out come of loan transaction and not agreement of sale and on the contrary, the schedule property i.e., land measuring 30 guntas in Sy.No.118/1B of the Benniganahalli village , K.R.Puram Hobli, Bangalore South Taluk is a joint family property, wherein defendant No.1 to 3 are not the exclusive owners of the said piece of land to execute the sale agreement in favour of plaintiff and it is also specific case of the defendant No.1 and 2, the defendant No.3 colluding with plaintiff had caused reply notice as per Ex.P.8 and hence, defendant No.1 and 2 have denied Ex.P.1 as agreement of sale, but it is a document outcome of loan transaction had with the plaintiff and hence, defendant No.1 and 2 have deneid the toto and execution and attestation by plaintiff as sale agreement.
19 O.S.No.8/200310. In order to prove Issue No1 and 3, the plaintiff himself is examined as P.W.1, wherein plaintiff has filed his affidavit filed in lieu of examination-in-chief under Order 18 Rule 4 of CPC and P.W.1 also further examined on 14.12.2005 and got marked the documents Ex.P.1 to P.9 in continuation of his affidavit evidence , wherein P.W.1 in his affidavit evidence filed by way of examination-in-chief has reiterated the facts as stated in the plaint averments and P.W.1 deposed that defendant No.1 to 3 have executed sale agreement in his favour on 30.3.1992 agreeing to sell the schedule property for sale consideration of Rs.8,40,000/- and have received Rs.2-00 lakhs advance amount on that day and 3rd defendant has received Rs.1-00 lakh on 30.3.1992 and had executed separate agreement in favour of plaintiff on the very day, wherein P.W.1 got marked original sale agreement at Ex.P.1 and also sketch map is marked along with agreement of sale and Ex.P.2 is the agreement executed by defendant No.3 in favour of plaintiff on 30.3.1992 and P.W.1 in his evidence identified the signatures of defendant No.1 to 3 on Ex.P.1 marked at Ex.P.1(a) to (c) and P.W.1 identified his signature as per Ex.P.1(defendant) and P.W.1 further stated that attesting witness by name Balakrishna , who is relative of defendants was also present and he has signed Ex.P.1, his signature is marked at Ex.P.1(e) and P.W.1 further stated that the defendant No.3 has executed Ex.P.2 agreement dated 30.3.1992, it is marked at Ex.P.2 and signature of defendant No.3 as per Ex.P.2(a) and for this agreement, Balakrishna 20 O.S.No.8/2003 has signed as attesting witness and signature of Balakrishna is marked as per Ex.P.2(b) and P.W.1 also stated that defendant No.3 executed endorsement on Ex.P.2 under his signature, which are marked at Ex.P.2(c) and P.2(d) and defendant No.3 also executed another endorsement on agreement Ex.P.2 as per Ex.P.2(e) and these endorsements are attested by witness namely Balakrishna , who has signed on Ex.P.2 and his signature is marked at Ex.P.2(f) and P.W.1 in his oral evidence stated that in para No.7 of his affidavit evidence, the date of agreement of sale is wrongly stated as 30.3.1993 instead of 30.3.1992 and the correct date of agreement of sale is to be read as 30.3.1992. Hence, P.W.1 by his oral evidence and got marked Ex.P.1 to P.8 which are consisting of other documents i.e., certified copy of plaint in O.S.No.5328 of 1990, certified copy of written statement filed in that suit by defendants No.4, 6, 7 and 15 dated 13.11.1990 with sketch map, certified copy of order sheet in O.S.No.5328 of 1990 filed by defendant Varadaraju against Muniyamma and others on 22.9.1990 before CCH No.11 for partition and separate possession, Office copy of legal notice dated 10.6.2002 and Ex.P.7 and P.8 are the reply notices issued by defendant No.1 and 2 and defendant No.3 respectively on 22.7.2002 and on 2.8.2003 respectively and Ex.P.9 is the RTC extract of Sy.No.118/1B of Benniganahalli village for the year 2001- 2002. Hence, P.W.1 relying upon his oral testimony and coupled with Ex.P.1 to P.9 as prayed for the grant of relief of specific performance against defendant No.1 to 3.
21 O.S.No.8/200311. The learned counsel appearing for defendant No.1 and 2 cross examined P.W.1, wherein P.W.1 admits that since 1994, he is practicing as an advocate and he knew defendants since about 20 years ago, wherein defendant No.1 to 3 are his distant relatives and also they are his neighbouring villagers and P.W.1 further admits that he is knew about the family of the defendants and apart from suit transaction, he was visiting the house of defendants. P.W.1 admits that the father of the defendants namely Narasimhaiah , his brothers Muniyappa, Narayanappa, Lakshmaiah are the sons of one Motappa and Sy.No.118/1B originally belongs to Motappa including other survey numbers and in respect of joint family lands, there was partition effected and P.W.1 stated that after effecting partition in the property sketch map was prepared to show allocation of property to different co-owners and P.W.1 admits that as per the sketch map, it shows that properties allotted to Motamma and Nanjundappa and P.W.1 admits that the sketch map given to him is not registered document and P.W.1 do not have any knowledge about whether there was any partition held during the life time of Motappa and P.W.1 stated that defendant No.1 to 3 are the children of Sri. Narasimhaiah, wherein Narasimhaiah is having 3 daughters and also his wife is alive and P.W.1 denied his knowledge whether the daughters and wife of Narasimhaiah are having right, title and interest over the schedule property and P.W.1 in further cross-examination stated that in the 22 O.S.No.8/2003 sketch map produced along with the agreement. The schedule property is marked by red ink and it was standing in the name of defendants' father Narasimhaiah and P.W.1 stated that as per Ex.P.1 the western boundary is shown as water canal, but the said canal is not found in the sketch map. However, witness volunteers that actually there is a water canal existed in between the schedule property and in the land o Katappa and it proceeds to the tank situated at a lower level and P.W.1 stated that on the previous day of agreement, there was sale negotiations took place between him and defendants and defendants came in the evening hours and P.W.1 stated that defendants had not brought any documents with them, but they told that they are selling the suit land and in the sale negotiations, the said price was fixed at Rs.8,40,000/- and on the day of offer, only these defendants have came to him and P.W.1 admits that he has not intimated anybody about his intention to purchase the land and again P.W.1 stated that defendants have disclosed pahani extract at the time of sale negotiations and on perusal of that pahani extract, the land was standing in the name of Motappa and also the sketch map produced by the defendants and defendants have given copies of RTC extract and map and P.W.1 further stated that the father of defendants was not present, when sale negotiations were took place and P.W.1 also admits that he has not obtained any legal opinion after conclusion of sale negotiations and P.W.1 also stated that the defendants have directly approached him with an offer of sell of schedule property and 23 O.S.No.8/2003 P.W.1 stated that prior to entered into agreement with defendants, he had purchased the adjacent land of schedule property belongs to one Krishnappa, son f Nanjundappa in the same survey number, but the transaction has not been concluded by execution of sale deed and subsequently plaintiff and said Krishnappa together have sold the said land in the year 1991 in favour of one A.S .Reddy and Sri. Gunjur Acharappa, but P.W.1 do not remember the extent of land sold by himself and Krishnappa and also he do not remember the sale consideration amount and P.W.1 stated that he is not income tax assessee, the sale agreement Ex.P.1 was executed at about 4.30 p.m and he has paid Rs.2-00 lakhs as earnest money to the defendants by way of cash and P.W.1 stated that the defendant No.1 to 3 were present when Ex.P.1 was executed and attesting witness namely Balakrishna was also present and defendants' mother was also present at the time of execution of Ex.P.1. Though P.W.1 stated that the mother of defendant No No.1 to 3 are present at the time of execution of Ex.P.1 but her signature was not obtaining by the plaintiff on Ex.P.1. Admittedly, the sisters of defendant No.1 to 3 and mother of defendant No.1 to 3 are not party to the agreement of sale Ex.P.1 and P.W.1 stated that as defendant No.1 to 3 have executed sale agreement in his favour. Therefore, the signature of the mother of defendants was not obtained on the sale agreement Ex.P.1 and P.W.1 also admits that as per the terms of agreement Ex.P.1, the defendants ought to have executed registered sale deed within 11 months and P.W.1 24 O.S.No.8/2003 also stated that though he was requesting the defendants within the period of 11 months repeatedly to execute the sale deed, but P.W.1 stated that he has not issued any notice in writing within 11 months time calling upon the defendants to execute registered sale deed and P.W.1 admits that defendant No.1 and 3 have informed him about the pendency of O.S.No.5328 of 1990 after he fixed the date of registration of sale deed in the month of December and P.W.1 also stated that the defendants in O.S. No.9/2003 had informed him about the pendency of O.S.No.5328 of 1990 and P.W.1 denied his knowledge regarding presence of the defendants' relative namely Balakrishna when Ex.P.1 was executed and P.W.1 further stated that after he came to know about the disposal of O.S.No.5328 of 1990 and after vacating of injunction order, the defendants had assured of execution of sale deed, but P.W.1 admits that he has not obtained the certified copy of plaint, injunction order passed on the interim application in O.S.No.5328 of 1990 for consideration of injunction order. However, P.W.1 deposed that in the middle of pendency of that suit, he was enquiring with the defendants and also P.W.1 admits he was verifying the status of suit O.S.No.5328 of 1990 in the court proceedings, but P.W.1 denied that whether defendant No.1 to 3 are not party in that suit and P.W.1 also denied that father of defendant No.1 to 3 namely Narasimhaiah was party in O.S.No.5328 of 1990 and P.W.1 stated that on 30.3.1992 the father defendants namely Narasimhaiah might to be alive, but P.W.1 stated that Narasimhaiah had suffered 25 O.S.No.8/2003 a paralytic stroke and he was unable to walk and P.W.1 admits that as per Ex.P.1, the schedule property was standing in the name of Narasimhaiah, but P.W.1 further stated that as there was partition amongst 4 brothers of Narasimhaiah, the schedule property was shown exclusively in the name of father of defendants in the sketch map and according to P.W.1, the 4 brothers are namely Narasimhaiah, Muniyappa, Narayanappa and Lakshmayya and P.W.1 admits that as per Ex.P.1, the schedule property was shown in the name of Narasimhaiah, but in the RTC extracts, they are standing in the name of the father of Narasimhaiah namely Motappa and P.W.1 admits that when Ex.P.1 was executed at that time, Motappa was not alive and P.W.1 further stated that as there was preparation of sketch map and allotment of shares, there was no need to obtain the signatures or consent from the brothers of Narasimhaiah in respect of the sale transaction and P.W.1 admits that as per Ex.P.1, the schedule property was succeeded by defendants through in ancestor Motappa and P.W.1 stated that he has produced the sketch map in order to show that the schedule property was allotted to the share of defendants' father along with Ex.P.1 and P.W.1 also stated that the defendants are grand children of Motappa and according to plaintiff as per the sketch map, there was effected by sons of Motappa and the name of defendants is shown in the sketch map and P.W.1 asked question in respect of sketch map regarding which portion was allotted to the share of defendants, wherein P.W.1 has identified the property allotted 26 O.S.No.8/2003 to the share of Narasimhaiah in the sketch map and further stated that the sketch map was given by the defendants when they are executed the agreement of sale and P.W.1 admits that there is no mention in Ex.P.1 regarding handing over of the sketch map and P.W.1 admits that he has not obtained consent of defendants' mother and their sisters for Ex.P.1 and P.W.1 admits that he has not filed any application to implead him as party/defendant in O.S.No.5328 of 1990 and P.W.1 admits that in the month of December 1992, he requested the defendants to execute the registered sale deed. At that time, defendants in turn have informed about the pendency of suit O.S.No.5328 of 1990 and also informed about injunction order granted in that suit, but pw1 admits that he has not verified the suit records in the court in respect of O.S.No.5328 of 1990 and P.W.1 stated that he has paid Rs.24,000/- to the defendants on 22.9.1996 on their faith, but he has not obtained any documents from the defendants. P.W.1 denied that he has paid Rs.1-00 lakh as per Ex.P.2 to 3rd defendant in respect of loan transaction and P.W.1 admits that as per the recitals of Ex.P.2, the said amount was to be repaid in 5 months time and if defendant No.3 not repaid the amount, the amount of Rs.1-00 lakh has to be entrusted to the sale transaction amount as mentioned in Ex.P.2 and P.W.1 further stated that he has paid Rs.1-00 lakh to defendant No.3 on the day of execution of Ex.P.1 and P.W.1 further stated that the amount of Rs.1-00 lakh to be adjusted in respect of sale transaction entered under Ex.P.1, for which the defendant No.1 27 O.S.No.8/2003 and 2 have consented for the same and the transaction was held in their presence and P.W.1 admits that he has not obtained the signature of defendant No.1 and 2 on Ex.P.2 and P.W.1 further stated that when he had made further payments as per Ex.P.2, by that time, defendant No.1 and 2 have already denied the execution of sale agreement Ex.P.1 and had replied to the legal notice issued by him and P.W.1 stated that he has made further payment to defendant No.3 after receipt of reply from defendant No.1 and 2 and P.W.1 denied that Ex.P.2 and signature of attesting witness on Ex.P.2 of Sri. Balakrishna are created for the purpose of documentary evidence in the suit. P.W.1 stated that O.S.No.5328 of 1990 was compromised out side the court and the said suit was with drawn and P.W.1 denied his knowledge regarding execution of registered partition deed executed between the joint family members prior to with drawal of O.S.No.5328 of 1990 and P.W.1 admits that he has not obtained any GPA executed from defendant No.1 to 3 as per the terms of Ex.P.1 and P.W.1 stated that he is having blank account since 1989-1990 and according to P.W.1 and as per Ex.P.1 and P.2 he has paid Rs.3-00 lakhs on 30.3.1992 itself by way of cash to the defendants and P.W.1 further stated that he has obtained the said amount from his father and P.W.1 further stated that he is the owner of 15 acres of garden land and the said amount was kept in his house and he has obtained Rs.3-00 lakhs from his father. P.W.1 denied the suggestion that he is financing the defendants frequently on loan basis and P.W.1 specifically 28 O.S.No.8/2003 denied that he has obtained the signatures of defendants after informing them regarding outstanding loan amount on blank stamp papers on 30.3.1992 and P.W.1 admits that father of defendants namely Narasimhaiah died on 9.3.1992 and P.W.1 denied that as defendants were in sorrow state of mind as on 30.3.1992 as their father had died on 9.3.1992 and defendants were not in state of mind to execute any sale agreement at that time and P.W.1 denied that defendants have written several letters seeking return of the alleged loan documents retained by him and w1 also denied that defendants have made correspondence through registered post with him in seeking return of blank stamp papers. However, P.W.1 admits that UCVVP documents confronted to him, which is marked at Ex.D.1 and P.W.1 stated that as defendants have informed him to execute sale deed after disposal of O.S.No.5328 of 1990. Hence, there was no necessity of giving any notice for filing of any suit against defendants and also P.W.1 stated that as defendants were cordial with him till 2002 and having faith on defendants, he could not obtained any endorsement on Ex.P.1 regarding payment made by him and P.W.1 denied that as he has not issued any statutory notice within the prescribed period as mentioned in Ex.P.1 and as he did not filed any suit within limitation. Hence, he lost right over the schedule property as per Ex.P.1 and P.W.1 denied that defendants have not executed any sale agreement in his favour, but the said documents is a document for security for the loan availed by the defendants and he had obtained the signatures of the 29 O.S.No.8/2003 defendants on blank stamp papers. However, P.W.1 admits that attesting witness namely Balakrishna is related to him. P.W.1 further admits that Motappa has got 5 sons namely Narasimhaiah, Muniyappa, Narayanappa, Lakshmaiah and Seenappa and he does not know about the daughters names of Motappa. However, P.W.1 admits that Motappa had a son by name Veerappa and P.W.1 further admits that the children of Veerappa has filed a suit in O.S.No.5328 of 1990 and he further admits that the father of defendant No.1 to 3 namely Narasimhaiah is arrayed as party/defendant in O.S.No.5328 of 1990 and P.W.1 denied his knowledge about the date of death of Narasimhaiah as he died on 9.3.1992 and P.W.1 admits that after demise of Narasimhaiah, his legal heirs have been impleaded in O.S.No.5328 of 1990 on 21.8.1995 and P.W.1 stated that the Narasimhaiah was the son of Motappa and he was the owner of schedule property and P.W.1 also admits that in the pahani extract, the name of Narasimhaiah and defendant No.1 to 3 are not appearing and P.W.1 denied his knowledge that after withdrawal of suit filed in O.S.No.5328 of 1990, Seenappa had filed the suit for partition and P.W.1 further denied that he has created Ex.P.1 by obtaining signatures of defendants on blank papers.
12. Defendant No.2 has given rebuttal evidence in the suit, wherein defendant No.2 has filed his affidavit evidence in lieu of examination-in-chief and D.W.1 further got examined on 31.8.2010 and on perusal of D.W.1 evidence filed in the form 30 O.S.No.8/2003 of affidavit, wherein defendant No.2 has deposed in his rebuttal evidence reiterating the contention raised in the written statement through his affidavit evidence under Order 18 Rule 4 of CPC and D.W.1 denied the case of the plaintiff and also denied the readiness and willingness of the plaintiff and D.W.1 specifically deposed denying the sale agreement Ex.P.1 and also passing up of consideration mentioned under Ex.P.1 on 30.3.1992. Hence on perusal of the affidavit evidence of D.W.1, wherein he has denied execution of Ex.P.1 dated 30.3.1992 in respect of sale of schedule property i.e., 30 guntas of land and in the evidence of D.W.1 documents Ex.D1. to D.21 are came to be marked and hence, D.W.1 relying upon his oral evidence and coupled with documents Ex.D.2 to D.21 as prayed as dismissal of the suit filed by the plaintiff.
13. The counsel for defendants applied for commission for recording the cross-examination of D.W.1 and accordingly, an advocate was appointed as Court Commissioner for the purpose of recording cross-examination and D.W.1 is cross examined on 1.7.2012 and cross-examination of D.W.1 is recorded on commission and the Court Commissioner has recorded the cross-examination of D.W.1 in his hand writing and also produced typed copy in Kannada of cross of D.W.1 directed to D.W.1 by plaintiff's counsel, wherein D.W.1 admits that he has studied up to SSLC and defendant No.1 and 3 are his brothers, wherein 1st defendant had failed in 8th standard and defendant No.3 also failed in 8th standard and witness 31 O.S.No.8/2003 D.W.1 confronted with Ex.P.1 and asked to identify the signatures on Ex.P.1, wherein D.W.1 admits his signature, which is marked at Ex.P.1(b) and again, D.W.1 admits another signature of his brother Anjinappa on Ex.P.1 as per Ex.P.1(a) and D.W.1 denied to identify the signature of brother defendant No.3 on Ex.P.1, but the signature of defendant No.3 is already marked as per Ex.P.1(c) and D.W.1 admits filing of suit by Varadaraju and others in respect of O.S.No.5328 of 1990 in respect of schedule property and other landed properties and D.W.1 admits that his father Narasimhaiah was arrayed as defendant No.4 and D.W.1 do not know about whether his father had signed on the written statement filed in that suit , but the written statement copies produced and marked at Ex.P.3 and D.W.1 confronted with Ex.P.3 and asked to identify the signature of his father on page No.11, but D.W.1 denied to identify the signature of his father Narasimhaiah and likewise Ex.P.3 was shown to witness on page No.11 and asked to identify the signature of B.L.Muniraju, wherein D.W.1 denied to identify the signature and D.W.1 denied that the witness by name Anand and M.Narayanappa appearing in Ex.P.3 on page No.11 are related to him and D.W.1 admits that after demise of his father Narasimhaiah, his LRs have been impleaded in O.S.No.5328 of 1990 and he further admits that his counsel has signed the vakalath filed in that suit for the LRs of deceased Narasimhaiah and D.W.1 denied his knowledge about the sketch map shown to him filed in O.S.No.5328 of 1990 along 32 O.S.No.8/2003 with written statement and P.W.1 admits that the map annexed to Ex.P.1 in that map, it is mentioned as Sy.No.118/1B of Benniganahalli village and the name of Narasimhaiah is marked and D.W.1 further stated that himself and his brother got typed Ex.D.2 and D.4 in the court campus and thereafter, they have sent the letters through post office and D.W.1 admits that Ex.D.2 and D.4 are dispatched through Agaram post office and D.W.1 has given explanation for posting of Ex.D.2 and D.4 from Agaram Post office stating that he had worked on that day and went to Agaram Post office and accordingly, he has posted Ex.D.2 and D.4 at Agaram Post branch and D.W.1 denied that as his uncle Narasimhaiah was serving in post office by creating false seals on Ex.D.2 and D.4 and he has prepared the said documents and filed in the suit and D.W.1 admits that the date and seal put on Ex.D.1 is belongs to Agaram Post office and seal dated 1.2.1999 and D.W.1 further stated that after impleading of applicant/LRs in O.S.No.5328 of 1990, they have not stated anywhere regarding partition held in the family, but D.W.1 stated that his brother Anjinappa had informed the fact of partition to his counsel and D.W.1 stated the name of counsel for defendant No.1 as the name of plaintiff and D.W.1 denied his knowledge about withdrawal of Vakalath filed for defendant No.1 by the p and D.W.1 denied the signature of attesting witness Balakrishna signed at Ex.P.1(a) and also further denied the signature made by Balakrishna on Ex.P.1 as attesting witness and D.W.1 denied that Balakrishna is the son of his mother-in-law 33 O.S.No.8/2003 and also denied further that the sister of defendants in O.S. No.9/2003 was given in marriage to Balakrishna and D.W.1 denied that he has signed on 30.3.1992 and also further denied that he has received Rs.2-00 lakhs from plaintiff under Ex.P.1 and he do not know about the amount received by 3rd defendant as per Ex.P.1 of Rs.1-00 lakh from the plaintiff as per Ex.P.2 and D.W.1 further stated that in Ex.P.1, there is no recitals as loan transaction for which D.W.1 stated that the plaintiff has obtained blank signatures on Ex.P.1 and P.2 at the time of advancing the loan amount and D.W.1 also stated that the plaintiff had agreed to return the stamp papers after allotment of the loan and D.W.1 further admits that he has not produced any documents in respect of the blank signatures obtained by the plaintiff on the blank stamp papers and D.W.1 also denied that in Ex.P.1 after it was typed with text and in the blank space available in order to avoid any insertion, the said space is marked into "X" by pen and it is initialed by 1st defendant and D.W.1 admits that he has not filed any complaint against 1st defendant regarding misuse of stamp papers in respect of Ex.P.1 and D.W.1 denied that he has created Ex.D.5 in order to cause loss to the plaintiff and cheat him and D.W.1 further admits that the children of Seenappa had challenged Ex.D.5 before the court of law and he admits filing of O.S. No. 3192/2002 and the said suit is pending and it is the pending for adjudication and D.W.1 admits that he has holds schedule properties and other properties and D.W.1 also denied that when plaintiff requested 34 O.S.No.8/2003 to execute the sale deed as per Ex.P.1. The defendants have assured the plaintiff of execution of sale deed after disposal of O.S.No.5328 of 1990 and also after vacating injunction order and hence D.W.1 stated that he was unable to execute the sale deed till disposal of O.S.No.5328 of 1990 and D.W.1 further denied that the defendants of O.S. No.9/2003 have insisted the defendants to sell the suit schedule property in favour of plaintiff and D.W.1 admits that Ex.D.10 to D.18 are concerned to land Sy.No.74/1 of Byrasandra village, but D.W.1 denied his knowledge that in respect of Sy.No.74/1 there was civil suit pending and D.W.1 also denied that in respect of Sy.No.74/1 right from lower court ie., City Civil Court till Supreme Court, cases have been filed and finally the dispute has been resolved in favour of one Chikkavenkatamma and D.W.1 also denied that the unsuccessful defendants in respect of Sy.No. 74/1 and colluding with police officials, they have got filed false criminal cases as registered in Ex.D.10 to D.18 and also D.W.1 denied his knowledge that in respect of filing of false cases, there was contempt proceedings initiated against defeated clients namely Byrappa in C.C.C.No.307/2005 before the Hon'ble High Court and D.W.1 denied that in order to cheat the plaintiff, he has filed a false defence in this suit and also deposing false evidence and D.W.1 admits he has not produced any documents to show that his health is not proper and he has not produced any medical certificate and D.W.1 also denied that if he appeared before the court and deposed in this suit, truth will come out and as 35 O.S.No.8/2003 such, he has falsely got appointed commission for the purpose of deposing before the Commissioner and D.W.1 denied that he has not signed any blank stamp appears and on the contrary, after receipt of money, he has signed on Ex.P.1 and D.W.1 further denied that the plaintiff even after disposal of O.S.No.5328 of 1990, he demanded to execute the sale deed to the defendants and P.W.1 also denied that though defendant No.3 has paid amount to defendant No.1 and 2 and as such, they have executed Ex.P.1 and defendant No.3 when requested to execute sale deed, at that time, defendant No.1 and 2 have denied his request and accordingly, defendant No.3 had replied Ex.P.6 by giving reply notice as per Ex.P.8 and D.W.1 further denied that he has suppressing true facts and deposing false evidence before this court. Hence, on perusal of the entire cross-examination of D.W.1 directed by the plaintiff's counsel before the Court Commissioner , wherein D.W.1 has not elicited any worth admission in order to discredit his evidence during cross-examination directed to witness on 1.7.2012.
14. After appreciation of the evidence placed on record both that of plaintiff/P.W.1 and that of defendant No.2/D.W.1's evidence and considering the documentary evidence placed on record , wherein the plaintiff though relied upon Ex.P.1 and p2 marked through him, wherein D.W.1 admits his signature and that of signature of defendant No.2 on Ex.P.1 and also D.W.1 admits the signature of defendant No.3 on Ex.P.2 and also 36 O.S.No.8/2003 admits the signature of attesting witness Balakrishna on Ex.P.1 and P.2, but Ex.P.2 though admitted by defendant No.3 in his reply notice dated 2.8.2003(Ex.P.8), but defendant No.1 and 2, who are the co-owners of the schedule property have specifically denied execution of sale agreement Ex.P.1 dated 30.3.1992 in favour of plaintiff and in view of written statement denial by defendant No.1 and 2, wherein it is for the plaintiff to prove and establish that Ex.P.1 is in real sense and document of sale agreement, wherein defendant No.1 to 3 have out-rightly agreed to sell the schedule property measuring 30 guntas of land in Sy.No.118/1B of Benniganahalli village, K.R.Puram Hobli, Bangalore East Taluk and though defendants have admitted their signatures on Ex.P.1 and P.2 and defendant No.3 admits that in his reply notice Ex.P.8 regarding Ex.P.1, but on perusal of the evidence of P.W.1, wherein he has deposed that he has made further payment of Rs.24,000/- on 27.9.1996 and there is no endorsement executed by defendant No.1 to 3 regarding receipt of Rs.24,000/- on 27.9.1996 and Ex.P.2 executed by defendant No.3 appears to be loan transaction existed between plaintiff and defendant No.3, wherein defendant No.1 and 2 have not consented for Ex.P.2 executed by defendant NBo.3 in favour of plaintiff and it is the case of the plaintiff that defendant No.3 has executed shara/endorsement regarding receipt of further amount of Rs.60,000/- paid by way of D.D of Rs.45,000/- and also plaintiff pleaded that remaining amount of Rs.15,000/- was paid by cash as received by defendant No.,3 and hence, 37 O.S.No.8/2003 P.W.1 stated that defendant No.3 had received Rs.60,000/- paid subsequently and P.W.1 has relied upon the alleged endorsement made by defendant No.3 on Ex.P.2, which are marked at Ex.P.2(a) to P.2(e) and P.W.1 further stated that the relative of defendant No.1 to 3 namely Balakrishna had signed Ex.P.2 as attesting witness and as such, P.W.1 relied upon the additional further payment made by him to defendant No.3 on 6.9.2002 and adjustment of the amount of Rs.1,60,000/- in the sale consideration amount and P.W.1 stated that defendant No.3 received this amount under Ex.P.2 for which, defendant No.1 and 2 have consented for the same and as such, P.W.1 stated that he has paid total part consideration amount of Rs.3,60,000/- in respect of the transaction Ex.P.1, but whereas D.W.1 denied in his evidence regarding execution of Ex.P.2 in consonance with Ex.P.1, sale agreement and D.W.1 and his brother defendant No.1 is not party to Ex.P.2 and defendant No.1 and 2 have not signed Ex.P.2 executed in favour of plaintiff and on the contrary, the plaintiff/P.W.1 has not produced any passbook held by him or any bank statement by obtaining extract of his bank account and also not produced any documents to show that he has issued D.D in favour of defendant No.3 bearing No.267232 in respect of payment of Rs.45,000/- though defendant No.3 caused reply notice as per Ex.P.8 issued through his counsel dated 2.8.2003, but defendant No.3, who is co-owner of the property having undivided interest and there is no authorization or any authority given by defendant No.1 and 2 to issue reply on their 38 O.S.No.8/2003 behalf admitting the execution of sale agreement Ex.P.1 in favour of plaintiff. On the contrary, it is the specific defence of defendant No.1 and 2 that Ex.P.1 is a created document by the plaintiff, wherein the defendants have obtained loan from the plaintiff and at that time, plaintiff had obtained the signatures of defendant No.1 and 2 as security for the loan advanced and in this view of specific defence, it is for the plaintiff to prove and establish Ex.P.1 that it is an agreement of sale out-right in respect of 30 guntas of land and also plaintiff has to prove that there is passing of consideration of Rs.2-00 lakhs amount under Ex.P.1 to defendants. P.W.1 stated that he has paid earnest amount after securing that amount from his father, but plaintiff has not examined his father in order to prove this contention and also plaintiff has not produced any bank account statement to show that as on the date of execution of alleged agreement Ex.P.1, there was amount of Rs.2-00 lakhs standing in credit of the account of the plaintiff. Though it is prayed on record that plaintiff and his father is having 15 acres garden land, but in a suit for specific performance, the plaintiff must establish and prove that on specific date of agreement, the consideration amount was passed on to the defendants, but P.W.1 failed to examine the attesting witness namely Balakrishna, who has signed Ex.P.1 and P.2 before the court to prove that Ex.P.1 is the sale agreement out-right by defendant No.1 to 3. Hence, the contention of plaintiff's counsel though defendant No.3 in his reply notice Ex.P.6 unequivocally admitted Ex.P.1 for himself 39 O.S.No.8/2003 and on behalf of defendant No.1 and 2 is not acceptable contention, wherein defendant No.3, who is also co-owner of the property was not having any authority to issue Ex.P.8 reply notice on behalf of his brother defendant No.1 and 2 and on the contrary , defendant No.1 and 2 have specifically denied execution of sale agreement in favour of plaintiff. Hence, considering the documents Ex.D.2 to D.4, it is the specific case of the defendant No1. and 2 that plaintiff had retained the blank stamp papers containing the signatures of defendants, but inspite of letter correspondence, plaintiff failed to return those documents and P.W.1 admits the address as shown in Ex.D.1 and D.3 in his cross-examination and considering the documents Ex.D.1 to D.4, wherein defendant No.1 and 2 have written these two letters addressed to the plaintiff on 1.2.1999 and on 11.5.1999, requesting the plaintiff to return blank stamp papers, which were obtained from the defendants in respect of loan transaction and particularly in Ex.d.4, defendant No.1 and 2 have stated that they have repaid the loan amount of Rs.75,000/-, which was obtained by them by paying Rs.1,25,000/- and defendant No.1 and 2 have requested the plaintiff to return the blank stamp papers retained by him and there is presumption arises regarding posting of these two letters marked at Ex.D.3 and D.4 and also P.W.1 admits that his postal address as marked in Ex.D.1 (UPC) certificate, wherein considering the citations relied by the plaintiff's counsel regarding service of letter correspondence sent through postal certificate and there is 40 O.S.No.8/2003 presumption regarding service of letters through post office transit under the Post Office Act Sec. 28( Act of 6 of 1898) read with Sec.114 of Evidence Act , wherein P.W.1 clearly admits his residential address as recited in Ex.D.1 and as such, it is presumed and held that plaintiff has received Ex.D.2 and D.4, these two letters written by defendant No.1 and 2 on 11.5.1999 and also on 1.2.1999, but plaintiff/P.W.1 has not denied in his evidence regarding receipt of these two letters and though there is cross-examination directed to D.W.1 by plaintiff's counsel by putting mere suggestion in respect of Ex.d.2 and D.4 that these two letters have been created only for the purpose of defending the suit, wherein D.W.1 has denied this suggestion specifically in his cross-examination. Hence, the plaintiff/P.W.1 though received Ex.D.2 and D.4 through postal transit written by defendant No.1 and 2, but plaintiff has not replied these two letters by denying the custody of the blank stamp papers obtained from the defendants out of loan transaction and from considering the other documents produced through D.W.1 , wherein defendant No.3 had filed a writ petition against Muniraju and others in W.P.No.34301/2009 (GM-CPC) before the Hon'ble High Court and challenged the order passed by the 7th ACCJ, Bangalore in O.S. No.7639/2009 and in this writ petition, the defendant No.3 had appointed/engaged counsel Sri.C.M.N, advocate in this writ petition, who is counsel for plaintiff in this suit and Ex.D.9 is the vakalath filed by the plaintiff himself as an advocate representing defendant No.1 as one of the Legal 41 O.S.No.8/2003 Representative of deceased defendant No.4 in O.S.No.5328 of 1990 filed on 28.7.1995 and Ex.D.21, which is the certified copy of deposition of defendant No.3, who has been examined as P.W.2 as witness for the plaintiff herein in O.S. No.9/2003 and after perusal of Ex.D.21, defendant No.3 in his cross- examination in Ex.D.21, has clearly admits that he was obtaining loan from the plaintiff and defendant No.3 also further admits that he has filed O.S. No.7639/2007 against defendants in respect of Sy.No.118/1F and though D.W.1 stated that he himself and his brothers have executed sale agreement, but it appears from documents Ex.D.8, D.9 and D.21, wherein the plaintiff and defendant No.3 have colluded with each other and plaintiff got replied through defendant No.3, the reply notice Ex.P.8 dated 2.8.2003 in admitting Ex.P.1 through defendant No.3 and relied in this case and as such, the defendant No.1 to 3, who are brothers and co-owners of the schedule property, wherein the schedule property 30 guntas of land in Sy.No.118/B is joint family property fallen to the share of Narasimhaiah in a registered partition deed amongst brothers, wherein after demise of Narasimhaiah on 9.3.1992, wherein the schedule property 30 guntas of land in Sy.No.118/B succeeded by wife of Narasimhaiah and his sons and daughters and this fact is admitted by P.W.1, but defendant No.1 to 3 have no exclusive right to execute any sale agreement in favour of plaintiff and since the plaintiff/P.W.1 has not replied Ex.D.2 and D.4 issued by the defendant No.1 and 2, which leads to draw an adverse inference against 42 O.S.No.8/2003 plaintiff in order to discard Ex.P.1 that Ex.P.1 is a created document by the plaintiff by misuse of the signatures of defendants obtained on blank stamp papers and plaintiff retained the blank stamp papers out of loan transaction existed between him and defendants and plaintiff had not returned the blank stamp papers inspite of defendants repeated requests and demands made under Ex. D.2 and D.4 and this circumstance leads to draw an adverse inference against plaintiff in not replying Ex.D.2 and D.4 under Sec. 114(g) of Evidence Act and in view of drawing up of adverse inference and non reply of Ex.D.2 and D.4 by plaintiff, wherein the defence urged by defendant No.1 and 2 in their written statement deserves to be proved and accepted in view of collusion between plaintiff and defendant No.3 though defendant No.3 in his reply notice Ex.D.8 admits Ex.P.1 and P.2, but the said admission does not binds defendant No.1 and 2, wherein defendant No.3 is co-owner to the extent of his undivided share in the schedule property, but whereas D.W.1 and his brother defendant No.1 is not party to Ex.P.2. Hence, I hold that plaintiff failed to establish that Ex.P.1 is out-right agreement of sale executed by defendant No.1 and 2 along with defendant No.3 and on the contrary, it is held that Ex.P.1 is a document retained by the plaintiff out of loan transaction existed between him and defendants and plaintiff failed to return the blank stamp papers retained in loan transaction and plaintiff has filed this suit after creation of Ex.P.1 as against defendants and hence, the documents 43 O.S.No.8/2003 produced as per Ex.D.8, D.9, D.21, which clearly and manifestly shows that there is collusion between plaintiff and defendant No.3 and defendant No.3 though he is brother of defendant No.1 and 2 is now acting adverse against his own brothers and liened in favour of plaintiff in admitting Ex.P.1 and P.2, but plaintiff failed to prove that Ex.P.1 is out-right agreement to sell and as such, the defence taken by defendant No.1 and 2 that Ex.P.1 is a manipulated and created document relied by the plaintiff, whereas plaintiff also failed to prove passing of consideration of Rs.2-00 lakhs to defendant No.1 and 2 on 30.3.1992 and also plaintiff failed to prove further payment and passing of consideration in favour of defendant No.1 and 2 and as such, I hold that Ex.P.1 is appears to be a suspicious document. Hence, I hold that plaintiff, who has issued notice as per Ex.P.6 on 10.6.2002 and also not filed the suit within the period of limitation immediately after lapse of 11 months as per the term agreed under Ex.P.1 and plaintiff caused demand notice on 10.6.2002 after lapse of 10 years and also plaintiff failed to prove his readiness and willingness as required under Sec. 16(c) of Specific Relief Act and as such, plaintiff has utterly failed to prove execution of Ex.P.1 by defendant No.1 and 2 as agreement to sell and now it shows that plaintiff and defendant No.3 have colluded with and as such, plaintiff failed to prove Issue No.1 and 3 against defendant No.1 and 2 and on the contrary, the defence of defendant No.1 and 2 deserves to be accepted in respect of Issue No.2 and defendant No.1 and 2 have proved Issue No.2 44 O.S.No.8/2003 as against plaintiff and accordingly, I answer Issue No.1 and 3 in negative against plaintiff and Issue No.2 in affirmative.
15. Issue No.4: The defendant No.1 and 2 in their written statement have taken specific plea regarding limitation contending that the suit filed by the plaintiff is barred by limitation, wherein defendant No.1 and 2 in para No.16, 18 stated that the suit filed by the plaintiff is after long delay and limitation and hence in view of this specific contention raised by defendant No.1 and 2, the limitation issue is framed casting the burden of proof on defendant No.1 and 2 and defendant in para No.10 to 15 also pleaded by denying the execution of sale agreement specifically contended that suit is barred by limitation.
16. The learned counsel appearing for defendant No.1 and 2 submitted his arguments in respect of Issue no.4 and also he relied upon the written synopsis filed on behalf of defendant No.1 and 2 and contended that alleged agreement of sale relied by the plaintiff at Ex.P.1 is dated 30.3.1992 and time fixed for performance in Ex.P.1 is 11 months, which expires on 28.2.1993 and plaintiff in para No.5 admits that the time fixed for execution of sale deed is 11 months, whereas plaintiff has filed the suit on 1.1.2003, 11 years after the alleged agreement and plaintiff has alleged cause of action in para No.16 of the plaint as cause of action arose on 30.3.1992 and also plaintiff further stated regarding alleged further 45 O.S.No.8/2003 payment on 27.9.1996 and also after receipt of reply by defendant No.1 and 2, the notice to Ex.P.6 on 22.7.2002 and dismissal of O.S.No.5328 of 1990 on 18.3.2002, wherein plaintiff has not produced any proof of payment in 1996 and also plaintiff has not produced any documents to show that the defendants have executed endorsement/acknowledgment for having received additional payment on 27.9.1996 and also defendants have not executed any separate agreement after lapse of period of limitation in writing in favour of plaintiff so as to attract the Sec. 18 of Limitation Act. The learned counsel for the defendants further contended that though O.S.No.5328 of 1990 was filed against defendants father and others and there was interim order of injunction for not to alienate the schedule properties against the defendants, but there was prohibitory order passed against the plaintiff restraining the plaintiff from filing the suit for specific performance and plaintiff admittedly did not issue any legal notice during pendency of suit O.S.No.5328 of 1990 and also plaintiff had not obtained any extension of time by the defendants in writing by extending the time of contract after expiry of 11 months from 30.3.1992. Hence, the learned counsel for the defendants relied upon decisions reported in 1987(2) KLJ 57 in case of Mahaboob Pasha Vs. Syed Zaheeruddin and others, issue in 2nd appeal 1984/1999 of Madras High Court dated 27.7.2012, ILR 2005 Kar page 2421 Head Note "A" and "B" and Supreme Court Civil AppealNo.104/1997 arising out of SLP in the case of ( T.L.Muddukrishna and another Vs. 46 O.S.No.8/2003 Smt.Lalitha Ramachandra Rao) and counsel for defendants relying upon documentary evidence marked at Ex.D.9 i.e., vakalath form filed by the plaintiff himself representing one of the Legal Representative of deceased Narasimhaiah in O.S.No.5328 of 1990 contended that plaintiff, who was practicing advocate was very well knew about the progress and status of O.S.No.5328 of 1990, wherein plaintiff himself had filed vakalath on 27.8.1995 representing defendant No.1 in that suit on27.8.1995 and as such, plaintiff was well within the knowledge of the pendency of suit O.S.No.5328 of 1990 and plaintiff ought to have filed this suit within period of 3 years from 25.2.1993 and also ought to have issued notice within period of 11 months from 30.3.1992 and on the contrary, plaintiff in his pleadings stated that defendant No.1 and 3 have informed about the pendency of the suit and after defendants informed about the pendency of the suit, plaintiff came to know regarding pendency of O.S.No.5328 of 1990 and hence, this statement made by the plaintiff is apparently false in view of Ex.D.9 filed by the plaintiff himself before CCH No.11. Hence, counsel for defendants relying upon his arguments in respect of Issue No.4 contended that as per Art.54(2) of Limitation Act 1963, the suit filed by the plaintiffs is barred by limitation as the suit is filed on 1.1.2003 after lapse of more than 11 years from the date of Ex.P.1. Hence, he prays for dismissal of suit.
17. The learned counsel appearing for the plaintiff in his arguments in respect of plea of limitation contended that 47 O.S.No.8/2003 defendant No.1 and 2 have suppressed the pendency of suit of O.S.No.5328 of 1990 and have executed Ex.P.1 and he relied upon injunction order passed in O.S.No.5328 of 1990 after filing of a suit on 22.9.1990 and that interim order was still subsisting passed in respect of not to alienate the suit schedule properties in that suit against defendants, wherein father of defendant No.1 to 3 deceased Narasimhaiah was one of the party in that suit and hence, defendants have assured the plaintiff of executing the sale deed after vacating the injunction order or after disposal of the said suit. Hence, plaintiff had waited till disposal of the suit in view of the assurance given by the defendants and plaintiff came to know about the dismissal of suit O.S.No.5328 of 1990 on 18.3.2002 and thereafter, plaintiff got issued legal notice to the defendant No.1 and 2 as per Ex.P.6 on 10.6.2002, wherein defendant No.1 and 2 have replied the said notice as per Ex.P.7 on 22.7.2002 and defendant No.3 had replied the notice by reply notice Ex.P.8 on 2.8.2003. Hence, counsel for the plaintiff contended that as defendant No3.admits Ex.P.1 in his reply notice Ex.P.8 and the said admission is binding on defendant No.1 and 2 and in view of further payment received by defendant No.3 on 6.9.2002, the suit filed by the plaintiff is well within limitation. Hence, counsel for plaintiff prays to answer Issue No.4 by recording negative finding against defendants.
48 O.S.No.8/200318. After hearing the arguments of both sides on Issue No.4 and after considering the pleadings and evidence placed on record and by perusal of documentary evidence and the rival contention submitted in respect of Issue No.4 and considering the written synopsis filed by defendant No.1 and 2, wherein the suit is filed by the plaintiff for specific performance relief based upon Ex.P.1 and P.2 dated 30.3.1992 and plaint was presented on 1.1.2003 and plaintiff has averred cause of action in para No.16 of the plaint and on the contrary , defendants in their written statement have denied the cause of action to file the suit and also denied para No1.6 of averments and defendants specifically taken plea of limitation contending that suit is barred by limitation. After hearing the arguments of both sides, wherein on perusal of Ex.P.1, wherein the period of 11 months is fixed under the contract agreed between the parties and as per period agreed under Ex.P.1 from 30.3.1992 lapses on 28.2.1993 and plaintiff has not issued any legal notice soon after expiry of 11 months and when fixed period is mentioned in the agreement of sale Ex.P.1, Article.54(2) applies, wherein the suit shall have to be filed within a period of 3 years or suit ought to have been filed from the date of refusal of specific performance by the defendants and as per Art.54(1) , if period is mentioned in the agreement of sale, the suit for specific performance has to be filed within 3 years as per Art.54(1) of Limitation Act. In this case, the plaintiff has not produced any further agreement executed by defendants and this court has already held that 49 O.S.No.8/2003 Ex.P.2 is not forming part of Ex.P.1 and on the contrary, it is held by this court that plaintiff and defendant No.3 are colluding with each other and plaintiff has not produced any documentary evidence to show further payments made on 27.9.1996 and also on 6.9.2002 and defendant No.1 and 2 are not party to Ex.P.2 and as such, Ex.P.2 is not binding upon defendant No.1 and 2. On the contrary, O.S.No.5328 of 1990, a suit filed by one of the son of Veerappa, who was one of the son of late Motappa for partition and separate possession against Muniyamma and others and in that suit, the father of defendant No.1 to 3 Narasimhaiah was arrayed as defendant No.4 and defendant No.4 had died during pendency of the suit on 9.3.1992 vide Ex.D.20 death extract produced by the defendants and after demise of defendant No.4, Narasimhaiah, his LRs were brought on record in O.S.No.5328 of 1990 and plaintiff herein himself has filed vakalath for defendant No.1(LR No.2) in that suit as per Ex.D.9 on 27.8.1995 and as such, plaintiff who is practicing lawyer from 1994 as per his own admission was aware of the pendency of O.S.No.5328 of 1990 when he has filed vakalath Ex.D.9 on 28.7.1995 itself and as such, the statement made by P.W.1 and averments made by the plaintiff in his plaint that he came to know about the pendency of the suit O.S.No.5328 of 1990 as informed by defendant No.1 to 3 is patently false statement made by the plaintiff. On the contrary, plaintiff himself knew about pendency of O.S.No.5328 of 1990 on 27.8.1998 itself on the date of filing of vakalath for B.N.Anjinappa i.e., defendant No.1 50 O.S.No.8/2003 of the suit. On perusal of the order sheet produced by the plaintiff as per Ex.P.5, wherein the suit was filed by Varadaraju son of Veerappa against Smt. Muniyamma and others on 22.9.1990 before CCH No.11 for partition and separate possession and as per order dated 22.9.1990, there was interim injunction order restraining the defendants from alienating the suit schedule properties and the said order has been continued and subsisting till disposal of the suit and as per order sheet dated 18.3.2002, the advocate for plaintiff filed memo in that suit stating that plaintiff not pressing the suit and accordingly, on 18.3.2002 as per memo filed before CCH No.11, the plaintiff suit came to be dismissed as not pressed. Considering the documents produced by the plaintiff himself as per Ex.P.5, wherein the injunction order though passed in O.S.No.5328 of 1990, the said interim order which are snot against the plaintiff and plaintiff which are snot restrained from filing any suit against defendants for specific performance and plaintiff in order to bring the suit within the limitation has concocted the pleadings and caused legal notice Ex.P.6 on 10.6.2002 stating that there was injunction order passed in O.S.No.5328 of 1990, but the injunction order was operating against defendants of O.S.No.5328 of 1990 and not against the plaintiff and defendants have not executed any further agreement in extending the time in favour of plaintiff and as such, once the period is fixed under Ex.P.1, wherein as per Art.54(1) time begins to run for computation of limitation in the specific performance suit and as such, period of 3 years 51 O.S.No.8/2003 commences from 1.3.1993, but plaintiff has not issued any statutory notice within a period of 11 months to defendants and as such, the plaintiff, who was knowing the proceedings of O.S.No.5328 of 1990 when he filed vakalath for defendant No.1 of the suit (Proposed Legal Representative of D.4) in O.S.No.5328 of 1990 on 27.8.1995 even plaintiff ought to have issued notice after he appeared in that suit and filed the suit within 3 years from 27.8.1995 for specific performance of contract , but plaintiff falsely stating that defendants have assured of execution of sale deed after vacating injunction order and after disposal of suit file din O.S.No.5328 of 1990 and as such, considering the citations referred by the counsel for defendant No.1 and 2, wherein the present suit filed by the plaintiff on 1.1.2003, which is after 11 years from the date of Ex.P.1 and as such, the suit of the plaintiff is barred by limitation and cause of action as stated in para no.16 is appears to be created and plaintiff was not prevented in filing the suit by injunction order, one granted in O.S.No.5328 of 1990 and hence, I hold that the defendant No.1 and 2 have proved that the suit of the plaintiff is barred by limitation and also citations referred by defendants' counsel are aptly applicable to the limitation issue and hence, the contention of plaintiff's counsel that the suit is well within the period of limitation is not acceptable contention in view of the facts and circumstances and documentary evidence produced by the plaintiff and hence, I hold that defendant No.1 and 2 have 52 O.S.No.8/2003 proved Issue No.4 as against plaintiff and accordingly, Issue No.4 is answered in affirmative.
19. Issue No.5 and 6: These two issues are framed in respect of the relief sought for by the plaintiff in the suit, wherein plaintiff has approached this court by way of suit seeking the relief of specific performance of contract in respect of Ex.P.1 dated 30.3.1992 and also sought for the relief of possession of schedule property from the defendant No.1 to 3 after analyzing the oral evidence including documentary evidence placed on record by the parties, wherein this court has already reached to the conclusion that Ex.P.1 is a suspicion document created by the plaintiff arising out of loan transaction between plaintiff and defendants, wherein plaintiff has failed to establish that Ex.P.1 dated 30.3.1992 is out-right an agreement to sell in respect of schedule property executed by defendant No.1 to 3 in his favour and on the contrary, this court after assessment of the oral evidence placed on record as held in Issue No.1 to 3 that plaintiff has not replied Ex.D.2 to D.4 though he has received the said letters issued by defendant No.1 and 2 on 1.2.1999 and on 11.5.1999 and plaintiff failed to prove his readiness and willingness right from the date of execution of Ex.P.1 till filing of suit and plaintiff failed to prove the necessary ingredients of Sec.16(c) of Specific Relief Act and also failed to prove and establish Issue No.1 as against defendants and on the contrary, it is evident from the oral and documentary evidence , wherein 53 O.S.No.8/2003 though plaintiff relied upon the issuance of legal notice to defendant No.3 as per Ex.P.6, but plaintiff has not produced any documents to show that Ex.P.6 was served upon defendant No.3 and hence, this court has already reached to the conclusion that there is active collusion between plaintiff and defendant No.3, wherein defendant No.3 issued reply as per Ex.P.8 admitting Ex.P.1, whereas Ex.P.8 reply notice issued by defendant No.3 does not bind the interest of defendant No.1 and 2 and the said admission cannot disposed the proof of Ex.P.1 by the plaintiff, wherein plaintiff shall have to establish execution of Ex.P.1 by defendant No.1 and 2 specifically by leading cogent evidence and by examining attesting witness , who was present at the time of Ex.P.1, but in this case, plaintiff failed to prove execution and attestation of the agreement of sale by defendant No.1 and 2 and on the contrary, the defence has taken by defendants appears to be more probable and proximate in this suit and as such, the plaintiff, who is a practicing advocate and knew about the defendants formal sale, wherein the suit land measuring 30 guntas fallen to the share of defendants father late Narasimhaiah, who died on 9.3.1992 leaving behind his wife, 3 sons and his daughters and admittedly, schedule piece of land 30 guntas in Sy.No.118/B is joint family property and only son of co-owners have executed alleged sale agreement Ex.P.1 and hence, as per the provisions of Sec.12(2) of Specific Relief Act, Ex..1 is incapable of grant of specific performance and apart from that, it is pertinent to note that the father of defendant No.1 to 3 died on 54 O.S.No.8/2003 9.3.1992 as per Ex.D.20 and alleged agreement of sale was appears to have been brought up on 30.3.1992 and it is improper that within a span of 20 days, whether defendants could be able to execute the alleged sale agreement and defendants have rightly taken up contention that defendants and their family members are in deep grief and sorrow condition and hence, the alleged agreement of sale relied by the plaintiff appears to be a suspicious document, which was came into existence within a span of 20 days after the demise of defendants father Narasimhaiah on 9.3.1992. Hence, this court has already answered Issue No.1 and 3 in negative against plaintiff and also held that suit of the plaintiff is barred by limitation and hence, the defendant No.1 and 2 have successfully proved their defence and this court has answered Issue No.2 in affirmative and as such, plaintiff is not entitled for any relief of specific performance much less the relief of possession as sought for and on the contrary, plaintiff has utterly failed to prove that the defendants have agreed to sell the schedule property for sale consideration amount as mentioned in alleged agreement Ex.P.1 and also there is no consensus ad-idem arrayed between plaintiff and defendant No.1 to 3 and considering the extent of land involved in the alleged transaction Ex.P.1 wherein 30 guntas of agricultural land, which is having more value as per the present Sub Registrar guidelines value and also considering the market value, wherein it appears to the court that Ex.P.1 is a suspicious document created arising out of loan transaction 55 O.S.No.8/2003 and as such, plaintiff is not entitled for any relief as sought for in the suit and on the contrary, the suit filed by the plaintiff deserves to be dismissed. Hence, with these observations, Issue No.5 and 6 are answered in negative against plaintiff.
20. Issue No.7: In view of my findings submitted on Issue No.1 to 6 and for the detailed discussions and reasons recorded on these issues and suit filed by the plaintiff is beyond the period of limitation and hence, in view of my detailed discussions and reasoning, the suit of the plaintiff deserves to be dismissed. However, in the facts and circumstances of this case, the parties shall bear their costs and hence, with these observations, I proceed to pass the following:-
ORDER The suit of the plaintiff filed for the relief of specific performance based upon alleged agreement of sale Ex.P.1 dated 30.3.1992 is dismissed.
No orders as to costs.
Draw decree accordingly.
{Dictated to the script typed by the typist through on line dictation process, corrected and then pronounced by me in open court this 9th day of January 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.56 O.S.No.8/2003
ANNEXUERE List of witnesses examined for plaintiff:-
PW.1 Sri. R. Surendra Babu List of documents exhibited for plaintiff:-
Ex.P.1 Agreement of sale dated 30.03.1992 along with sketch map executed by defendant No.1 to 3 in favour of plaintiff Ex.P.2 Agreement of sale dated 30.03.1992 executed by defendant No3. in favour of plaintiff regarding receipt of Rs.1-00 lakh Ex.P.3 Certified copy of the plaint in O.S.5328/90 filed by Varadaraju against Muniyamma and others ( father of defendants Defendant No.4) Ex.P.4 Certified copy of the written statement filed in O.S. No.5328/90 before CCH No.11 by defendant No.4, 6, 7 and 18 dated 13.11.1990 with sketch map Ex.P.5 Certified copy of the order sheet in O.S.5328/90 filed by Varadaraju against Muniyamma and others on 22.9.1990 before CCH No.11 for partition and separate possession.
Ex.P.6 Office copy of the legal notice dated 10.6.1992 addressed to defendant No.1 to 3.
Ex.P.7 Reply notice by defendants dated 22.7.2002 given by defendant No.2 for self and on behalf of other two brothers 57 O.S.No.8/2003 Ex.P.8 Reply notice given by defendant No.3 dated 2.8.2002 addressed to plaintiff Ex.P.9 R.T.C. extract of Sy.No. 118/1B for the year 2001/2002 List of witnesses examined for defendant/s:
DW.1 Sri. B.N.Govindaraju List of documents exhibited for defendant/s:
Ex.D.1 Under certificate of posting dated 1.2.1999
containing plaintiff address
Ex.D.2 O/C of letter dated 11.5.1999 addressed to
plaintiff by defendant No.1 and 2
Ex.D.3 Under certificate of posting dated 11.5.1999
Ex.D.4 Office copy of letter dated 1.2.1999
Ex.D.5 Certified copy of the partition deed dated
27.07.2002
Ex.D.6 Certified copy of the deposition of plaintiff
in O.S. No.3587/1996 dated 9.9.2004
Ex.D.7 Certified copy of the plaint in
O.S.7639/2007 filed by Krishnamurthy
against Muniraju and others dated
27.7.2005
Ex.D.8 Certified copy of the High Court order in
W.P.No.34301/09 (GM-CPC) filed by
defendant No.3 against Muniraju and
others
58 O.S.No.8/2003
Ex.D.9 Certified copy of the vakalath filed by
plaintiff for defendant No.2 in O.S.
No.5328/1990 as one of the LR of
Narasimhaiah dated 28.7.1995
Ex.D.10 Certified copy of the FIR in Cr.No.27/2005 dated 23.2.2005 registered against plaintiff before Byappanahalli Police Station Ex.D.11 Certified copy of the complaint given by Muniswamy Gowda against plaintiff dated 23.2.2005 Ex.D.12 Certified copy of the FIR in Cr.No.29/2005 dated 23.2.2005 Ex.D.13 Office copy of the complaint given by Ganesh Rao before Byappahalli Police Station dated 23.02.2005 Ex.D.14 Certified copy of the FIR in Cr.No.158/2005 dated 3.9.2005 against plaintiff/accused Ex.D.15 Certified copy of the complaint filed by Muniyamma dated 01.09.2005 Ex.D.16 Certified copy of the FIR in Cr.No.157/2005 dated 3.9.2005 against Surendra Babu Ex.D.17 Certified copy of the FIR in Cr.No.43/2005 dated 7.5.2005 against Surendra Babu and others Ex.D.18 Certified copy of the complaint dated 06.03.2005 to PSI, Byappanahalli Police Station by Venkataramana 59 O.S.No.8/2003 Ex.D.19 Certified copy of the order sheet in O.S.No.5328/1990 Ex.D.20 Certified copy of death certificate of Sri.M.Narasimhappa.
Ex.D.21 Certified copy of the deposition in O.S.No.9/2003 of Sri.R.Surendra Babu.
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY