Bangalore District Court
T.R.Yogananda vs Smt. Annapoorna on 18 February, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 18th day of February 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1882 of 2006
C.C.H.8
Plaintiff: T.R.Yogananda
S/o T.C.Ramaswamy,
aged about 40 years,
residing at No.90, 6th Cross, Ashok Nagar,
Bangalore-50
(By Sri.VBS Advocate)
: Vs :
Defendant/s: 1. Smt. Annapoorna,
W/o Late M.R.Nagaraja,
aged about 55 years,
residing at No.421, 3rd Main,
Rana Pratap Singh Road,
Srinivasa Building,
K.R.Puram Extension,
Bangalore-36
2. Smt. Geetha
D/o Late M.R.Nagaraja,
W/o Sri. Manjunath,
aged about 30 years,
old Post Office road, Devi
Condiments, (Cooking contractors)
K.R.Puram,
Bangalore-36
2 OS. No.1882/2006
3. Sri. R.Gangadhar
S/o Late Revaiah,
aged about 21 years,
residing at No.136,
Ittamadu Grama, BSK III Stage,
adjacent to Veeranhaneya Temple,
Bangalore-85
4. Sri. R.Jayadev
S/o Late Revaiah,
No.97, 2nd Cross, Sunkenahalli,
Bangalore-19
(Dead. L.rs are already on record)
5. Sri. R.Jayamma
W/o Late Revaiah, Major
No.97, 2nd Cross, Sunkenahalli,
Bangalore-19
6. Smt. Lakshmamma
W/o Late R.Jayadev,
aged about 40 years,
7. Smt.Majunla
D/o Late R.Jayadev,
aged about 22 years
8. Sri. Chandrashekar,
S/o Late R.Jayadev,
aged about 19 years
Defendant No.4 to 6 residing at
No.97, 2nd Cross, Sunkenahalli,
Bangalore-19
9. Sri.R.Revanna,
S/o Late Revaiah,
No.94, 2nd Cross, Sunkenahalli,
Bangalore-19
3 OS. No.1882/2006
10. Sri. Thimmamma
W/o Late Revaiah, Major
No.94, 2nd Cross, Sunkenahalli,
Bangalore-19
11. Smt. Parvathi
W/o Thimmarayappa, major,
residing at Bhuvaneshwari Nagar,
Bangalore -85
12. Smt. R.Savithri,
W/o Channappa, major,
Ittamdu village, BSK III stage,
Bangalore since deceased by L.Rs
( Dead, L.Rs are already on record)
13. Smt. R.Shankari,
w/o Ramesh, major,
T.R.Nagar,
Bangalore-28
14. Smt. Jayasheela,
w/o N.Raju, major,
residing at Ittamdu village,
BSK III stage, Bangalore-85
15. Smt. R.Yashoda,
D/o Late R.Revaiah, major,
residing at Ittamdu village,
BSK III stage, Bangalore-85
16. Smt. Manjula
major No.22, BSK III Stage, III
Phase, Ittamadu village, Bangalore-
85
4 OS. No.1882/2006
17. Sri.Prasanna,
major, No.22, BSK III Stage,
III Phase, Ittamdu village,
Bangalore-85
(D.1, D.2, D.5 to D.11(),
D.13 to D.17 () expt.,
D.3-HPL
D.4,D.12-Dead( LRs on record)
Date of the institution of 06.03.2006
suit:
Nature of the suit: Specific performance
Date of the commencement 17.08.2009
of recording of the evidence:
Date on which the judgment 18.02.2015
was pronounced :
Total Duration Year/s Month/s Day/s
08 11 12
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the plaintiff against defendants seeking the relief of specific performance of contract in respect of alleged sale agreement dated 10.03.2003 and alleged GPA dated 31.03.2003 in respect of suit schedule 5 OS. No.1882/2006 property and plaintiff has prayed for declaration relief that the alleged agreement of sale dated 10.03.2003 is subsisting and enforceable contract against defendant No.1 and 2 and for consequential relief of injunction restraining defendants from alienating, encumbering or creating 3rd party rights in respect of suit schedule property including the costs of the suit.
2. The case of the plaintiff as averred in the plaint is as follows:-
The subject matter of the suit as pleaded by the plaintiff in the plaint schedule is in respect of property bearing house List No.40 Katha NO.90, Corporation No.40, 4th Cross, Ittamadu, Ward No.55, "B" Bangalore-85 measuring east to west 40 feet and north to south 30 feet along with one square sheet house constructed therein and bounded on the :-
East by: House property No.39, West by: House property No.41, North by: Road, South by: House property No.90 It is the case of the plaintiff that the schedule property originally belongs to one Sri.R.Nagaraja S/O M.S.Ramaiah , a resident of No.33, 1st Main road, Ittamadu, BDA Layout, Banashankari, Bangalore was the absolute owner of schedule property i.e., vacant site together with house property bearing house List No.40 Katha NO.90, Corporation 6 OS. No.1882/2006 No.40, 4th Cross, Ittamadu village, Kathriguppe Village, Panchayath, Uttarahalli Hobli, Bangalore South Taluk provided with amenities purchased the property under a registered sale deed dated 31.03.1994 from Sri. R.Jayadev, R.Revanna, Smt. Jayamma and Sri. R.Gangadhar, who are also arrayed as defendants in the present suit, conveyed right, title and interest under registered sale deed dated 31.03.1994 in favour of Sri.M.R.Nagaraja, which was registered in the Sub Registrar at Kengeri. The katha of the schedule property was transferred in the name of Sri.M.R.Nagaraja and he was also paying taxes, betterments fees in respect of schedule property and also payment of betterment charges and enquiry under Sec. 143 was issued to Sri.M.R.Nagaraja and hence, Sri.M.R.Nagaraja had acquired right, title and interest in respect of suit schedule property in pursuance of the sale deed dated 10.03.2003 . Sri.M.R.Nagaraja entered into agreement to sell on 10.3.2003 agreeing and accepting to convey right, title and interest in respect of schedule property in favour of plaintiff.
Under the terms of agreement Sri.M.R.Nagaraja agreed to convey the schedule property for valuable consideration amount of Rs. 1,80,000/- and received earnest amount of Rs.25,000/- towards part sale consideration amount and balance sale consideration amount of Rs.1,55,000/- was to be received by him on the date of execution of absolute registered sale deed coupled with the said agreement of sale Sri.M.R.Nagaraja also executed GPA in respect of schedule 7 OS. No.1882/2006 property in favour of plaintiff on 31.3.2003 to do all acts, deeds and things pertaining to the property. Subsequently Sri.M.R.Nagaraja died and upon his death, he was survived by his wife and daughter, who are defendant No.1 and 2 in this suit and they are sole legal heirs, who have succeeded to the estate of deceased. Under the agreement of sale dated 10.03.2003 there was an obligation either by Sri.M.R.Nagaraja or by his heirs or the legal representatives, who are bound to complete the sale transaction in terms of the contract in the even of Sri.M.R.Nagaraja unable to complete the sale transaction. Defendant No.1 and 2 are the legal heirs are under obligation to fulfill his commitment under the sale agreement being the L.Rs of deceased Sri.M.R.Nagaraja and defendant No.1 and 2 did not fulfill their part of obligation in conveying the schedule property by execution of sale deed in favour of plaintiffs. Though 3 months time was stipulated under to agreement to sell dated 10.03.2003 in the sale agreement though time of 3 months was mentioned being the essence of the contract, wherein a power of attorney was executed by Sri.M.R.Nagaraja in favour of plaintiff on 31.3.2003, 20 days after the execution of sale agreement and this was to take into consideration allowing possession of the property under the said power of attorney executed by him and further the GPA executed by Sri.M.R.Nagaraja enabling the plaintiff regarding handing over of possession and in pursuance of the agreement of sale coupled with GPA, the plaintiff was put in possession of the 8 OS. No.1882/2006 schedule site along with existing structure. Subsequently the plaintiff got issued legal notice to defendant No.1 and 2 by RPAD to the address of the defendants, where they are residing, but defendant No.1 and 2 did not comply the demands made in the legal notice. On the contrary, defendants indulged and attempted to create documents in respect of schedule property with the help of defendant No.3 to 17 and defendant No.3 to 17 made certain illegalities by defusing the terms of the agreement and also in order to take into consideration that the sale deed executed by defendant in favour of Sri.M.R.Nagaraja is left without it being identified inter-se and they filed O.S. No.1917/2000 for partition and separate possession and got settled the suit in terms of compromise and as such, the said compromise decree is a fraudulent one and the said compromise decree is obtained collusively only in order to take the power of attorney holder, who executed sale deed to knock of the property by unlawful means. Having regard to the facts that there is a sale deed, plaintiff becomes entitled to get the sale deed conveyed in his name in terms of the contract executed and concluded by Sri.M.R.Nagaraja during his life time and which obligation is the obligation that he succeeded by the defendant No.1 and 2. Hence, defendant No.1 and 2 are under obligation to execute the sale deed in favour of plaintiffs in respect of suit schedule property. Though plaintiff searched the address of the legal heir, where they are residing in the address as mentioned in the 9 OS. No.1882/2006 cause title. However, defendant No.1 and 2 were trying to evade execution of sale deed and accordingly, plaintiff constrained to cause legal notice dated 28.6.2005 and defendant No.1 and 2 after receipt of legal notice, they have now changed to the present address, where they are residing, but defendants failed to execute sale deed. It is further alleged by the plaintiffs that he has spent huge amount and got acquired the schedule property by virtue of sale deed that was executed by Sri.M.R.Nagaraja and thereafter, defendant No.1 and 2, the defendant No.3 to 17 have been trying to create rights within themselves this fight knowing fully well with the property is available and it it under an agreement to sell and plaintiff is acting as power of attorney holder to maintain the property despite the death of Sri.M.R.Nagaraja. Therefore,, they have been trying to dispossess the plaintiff forcibly from the schedule property. Hence, plaintiff constrained to file the suit for specific performance of agreement to sell dated 10.03.2003 and plaintiff also pleaded that he was always ready and willing to perform his part of contract and even he is ready to perform his part of contract after the death of Sri.M.R.Nagaraja and he approached the defendant No.1 and 2, but they refused to execute the sale deed. Hence, plaintiff pleaded his readiness and willingness in respect of sale agreement dated 10.03.2003 in para No.11 of the plaint and plaintiff also alleged that though defendant No.1 and 2 evaded to execute sale deed and also they have quoted higher price, for which, 10 OS. No.1882/2006 plaintiff was prepared to pay higher consideration amount for obtaining sale deed executed in his favour Despite which, defendants instead of execution of sale deed tried to interact with the defendant No.3 to 17, and as such, plaintiff constrained to issue telegraphic notice calling upon defendant No.1 and 2 to execute sale deed. Hence, defendant No.3 to 17 have been made party to this proceedings for the purpose of not to defeat the terms of contract for execution of the sale deed. The plaintiff disclosed cause of action to file the above suit arose on 10.3.2003, the date of execution of sale agreement 3 months thereafter and also after death of Sri.M.R.Nagaraja and after execution of GPA dated 31.03.2003 . Hence, plaintiff alleging cause of action in para No.13 of the plaint has filed the suit for specific performance of contract based upon alleged agreement to sell dated 10.03.2003 and GPA dated 31.03.2003 against defendants.
3. The suit summons was issued to the defendant No.1 and 2, wherein they remained exparte and other defendant No.5 to 11, 13 to 17 are also remained absent and exparte in this suit, wherein defendant No.4 and 12 by leaving behind their L.Rs, who are already on record and only defendant No.3 appeared through counsel and filed written statement and contested the suit filed by the plaintiff is not maintainable either in law or on facts and as such, suit is liable to be dismissed in limine. Defendant No.3 denied the averments 11 OS. No.1882/2006 made in para No. 2 of the plaint and he further denied that one Sri.M.R.Nagaraja son of M.S.Ramaiah was the absolute owner of vacant site together with house property in House List No.40, Katha No.90, corporation No.40, 4th cross Ittamadu, Uttarahalli Hobli, Bangalore South Taluk provided with all amenities was purchased under sale deed dated 31.03.2003 and No.3 further denied the averments made in para No.3 of the plaint and called upon to plaintiff to prove the averments made in para No.3 and defendant No.3 also denied that Sri. R.Jayadev, R.Revanna, Smt. Jayamma and Sri. R.Gangadhar and himself had executed sale deed dated 31.03.1994 and defendant No.3 further denied the averments made in para No.3 of the plaint and also denied that Sri.M.R.Nagaraja after he purchased the property under sale deed dated 31.03.1994 got entered his name in respect of schedule property and katha stands in his name and thereafter, he entered into contract of agreement to sell dated 10.03.2003 and also denied that property was agreed to be sold for Rs.1,80,000/- as sale consideration amount and deceased Sri.M.R.Nagaraja had received Rs.25,000/- as advance sale consideration amount and he agreed to execute the sale deed after receiving the balance sale consideration amount of Rs.1,55,000/- and defendant No.3 further denied that Sri.M.R.Nagaraja had executed GPA in favour of plaintiff in continuation of sale agreement. Defendant No.3 further denied the averments made in para No.6 of the plaint and also denied the averments that the defendant No.1 12 OS. No.1882/2006 and 2 being the legal heirs of deceased Sri.M.R.Nagaraja are bound to execute the sale deed in favour of plaintiff. Hence, defendant No.3 in his written statement denied the averments made in para No. 7 and 8 and contended that the plaintiff has filed this suit and concocted story in order to maintain the suit and defendant No.3 denied the execution of GPA in favour of plaintiff dated 31.03.2003. Hence, defendant No.3 specifically denied the allegations as shown in the plaint and also denied that defendant No.3 to 17 in collusion with defendant No.1 and 2 are attempting to create documents in respect of schedule property to deprive the plaintiff of his claim of agreement existed in his favour and defendant No.3 also denied the allegations that the compromise decree obtained in O.S. No.1917/2000 is fraudulent decree to deny the claim of plaintiff and defendant No.3 further denied the averments made in para No.9 and 10 of the plaint and also specifically denied the averments made in para No.11 and 12 and further denied the claim of plaintiff set up regarding agreement to sell dated 10.03.2003 and GPA dated 31.03.2003 and defendant No.3 specifically denied the cause of action as stated in para No.13 of the plaint.
Defendant No.3 in para No.15 of the written statement contended that site No.40 formed in Sy.No.40/1 and ¼-B measuring totally 1 acre 32 guntas which is an ancestral property of defendant No.3 and his family members belongs to Revaiah, the father of defendant No.3, wherein Revaiah is 13 OS. No.1882/2006 having two wives namely Thimmamma and Jayamma and Smt. Thimmamma having 3 children namely Jayadeva died on 2.1.2001, Revanna and Parvathi, wherein Smt. Jayamma having 5 children namely Savithri, died during 2002, Shankari, Jayasheela, Yashoda and defendant No.3. The mother of defendant No.3 is illiterate lady and his father died on 28.6.1979 and thereafter taking undue advantage of illiteracy and dependency of mother of defendant No.3, Sri. Jayadeva having a dominant possession controlling the "Will" of the mother of 3rd defendant taking advantage of illiteracy of the mother of defendant No.3 had obtained her thumb impression on the pretext of the kartha of joint family and other related documents and believing the version of Jayadev, the mother of defendant No.3 used to put her thumb impression without knowing the facts of the documents and as such, the alleged documents are created by Jayadev by obtaining thumb impression obtained on blank stamp paper and defendant No.3 after he attained majority , he demanded for his legitimate share with Jayadev and other joint family members in respect of joint family properties as children of Revaiah were reluctant to allot legitimate share to defendant No.3 and thereby defendant No.3 was force to file the suit in O.S. No. 1719/1996 for partition and separate possession and after protracted proceedings and subsequently due to the intervention and well wishers, the matter has been compromised and defendant No.3 was given share as per the compromise decree dated 23.1.2003. Hence, 14 OS. No.1882/2006 defendant No.3 contended that the compromise decree there is no fraud, collusion or undue influences exerted by defendant No.3 on the parties in the said suit and as per the compromise decree, the property bearing No.40 (site) fallen to the share of defendant No.3 and at no point of time schedule site was parted with possession of joint family to other members and in the said site, ACC sheet house was constructed and there were 6 tenements were residing namely Smt. Seethamma, Smt.Susheelamma and other peoples on lease basis and defendant No.3 claims to have produced rent agreement and copy of mortgage deed and also defendant No.3 has produced photographs showing the existence of ACC sheets house and he has obtained power supply in the name of defendant No.3 and katha also changed in his name. Hence, defendant No.3 claims to be in peaceful possession and enjoyment and after he came to know about the fraudulent sale deed in favour of late Sri.M.R.Nagaraja , the husband of 1st defendant, wherein he filed a suit against Legal Representative of deceased Sri.M.R.Nagaraja in O.S. No.399/2004 for declaration and other reliefs, wherein in the said suit, the matter was compromised by way of compromise petition filed on 7.2.2005 and accordingly, suit O.S. No.399/2004 came to be decreed on 8.2.2005. Hence, all these documents clearly demonstrates the defendant No.3 is undisturbed peaceful possession and enjoyment of the schedule property including ACC sheet. Hence, the alleged agreement of sale 15 OS. No.1882/2006 alleged to have been executed by deceased Sri.M.R.Nagaraja dated 10.03.2003 and other relevant documents to deal with the schedule property are false, fabricated documents created for the purpose of this case. Hence, suit filed by the plaintiff is not only misconceive, but also the alleged documents does not create any right, title and interest much less any interest for seeking declaration and other reliefs. Hence, defendant No.3 on this defence, resisted the suit filed by the plaintiff and pray for dismissal of suit with exemplary costs.
4. Based upon these pleadings, the following issues are framed for trial in the suit on 31.10.2007 :-
1. Whether the plaintiff prove that the one Sri. M.R. Nagaraj has agreed to sell the schedule property for Rs.1,80,000/- and executed an agreement of sale dt: 10.3.2003 and received the advance amount of Rs.25,000/-?
2. Whether the plaintiff prove that the compromise entered into in O.S.1917/2000 is fraudulent one?
3. Whether the defendant No.3 prove that in respect of the suit property there is a compromise decree in O.S.399/2004?
4. Whether the plaintiff prove that the sale agreement dtd:10-3-2003 is subsisting and enforceable against the defendants 1 and 2?16 OS. No.1882/2006
5. Whether the plaintiff proves that he has been always ready and willing to perform his part of the contact?
6. Whether the plaintiff is entitled the relief of Specific Performance of contract?
7. Whether the plaintiff is entitled the relief of Permanent Injunction as sought for?
8. What Order or Decree ?
5. In order to prove the above issues, the plaintiff himself is examined as PW.1 and got marked the documents Ex.P.1 to P.21 and also got examined a witness P.W.2 namely R.Venkatesh Babu and with this evidence, plaintiff side evidence is closed. Defendant No.3 is examined himself as D.W.1 and got marked Ex.D.1 to D.25 and closed his evidence and thereafter, matter was posted for arguments.
6. Heard the arguments of counsel for plaintiff and counsel appearing for defendant No.3, wherein the counsel appearing for plaintiff and defendant No.3 filed written synopsis and written arguments in respect of their respective contention raised in this suit and also relied upon their respective citations in support of their arguments.
In support of his case the counsel for plaintiff has relied upon the following decisions:-
17 OS. No.1882/20061. AIR 2007 SC 2663 (MMS Investments Madurai and others Vs. V.Veerappan and others);
2. AIR 2000 SC 191(Manzoor Ahmed Magray Vs. Gulam Hassan Aram and others)
3. (2012) 5 SCC 403( Prakash Chandra Vs. Narayana)
4. AIR 2010 SC 3025((Laxman Tatyaba Kankate and another Vs. Smt. Taramati Harishchandra Dhatrak)
5. AIR 1971 SC 1238 ( Ramesh Chandra Chandiok and another Vs. Chuni Lal Sabharwal(Dead) by his legal representatives and others)
6. AIR 2005 SC 3503(1) ( Aniglase Yohannan Vs. Ramlatha and others)
7. 2005 AIR KANT, H.C.R 19(Bhagawan B.Kedari ( deceased by L.Rs) Vs. Dwarakanath K.Bagare and others)
8. AIR 1972 SC 1520( Dr.Govinddas and another Vs. Smt. Shantibai and others) In support of his case, the counsel for defendant No.3 has relied upon the following decisions:-
1. AIR 1997 Karnataka 275( V.R.Kamath Vs. Divisional Controller Karnataka State Road Transport Corporation and others) 18 OS. No.1882/2006
2. JT 1993(3) S.C 340( Panni Lal Vs. Rajinder Singh and another)
3. 2014 AIR SCW 2793( Mathai Mathai Vs. Joseph Mary)
4. 2003 (8) SCC 745(Narbada Devi Gupta Vs. Biredra Kumar Jaiswal and another);
5. 2004(2) KCCR 705(Basawanappa (deceased) by LRs Vsd.Nana Rao & Prakash)
7. On appreciation of the pleadings filed in this suit and on appreciation of evidence of P.W.1 and P.W.2 documents Ex.P.1 to P.21 and that of DW.1 and documents Ex.D.1 to D.25 and considering the arguments addressed by the respective counsel, I answer the above issues are as follows:-
Issue No.1 In the affirmative;
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: In the negative
Issue No.6: In the negative
Issue No.7: In the negative
Issue No.8: The suit of the plaintiff filed for
specific performance and
consequential relief deserves to
be dismissed for the following
reasons:-
19 OS. No.1882/2006
REASONS
8. Issue No.1 to 5: Since these issues are
interconnected to each other and hence, they are taken up for discussion together in order to avoid repetition and facts and evidence.
It is the case of the plaintiff that deceased M.R.Nagaraj, who was the owner of the suit schedule property had executed sale agreement in order to sell the schedule property under agreement to sell dated 10.3.2003 for sale consideration amount of Rs.1,80,000/- in favour of plaintiff and had received part consideration amount (earnest money of Rs.25,000/-) from the plaintiff and agreed to convey registered sale deed in favour of plaintiff after receiving balance sale consideration amount of Rs.1,55,000/- and 3 months time was agreed to conclude the sale transaction from the date of agreement of sale i.e., from 10.3.2003 and as per the terms of agreement, time is the essence of contract and subsequently the husband of 1st defendant and father of 2nd defendant died and though plaintiff was ready and willing to perform his part of contract, but deceased defendant failed to execute the sale deed in favour of plaintiff and accordingly, plaintiff constrained to issue legal notice dated 28.6.2005 as per Ex.P.8 to defendant No.1 and 2, who are the LRs of deceased M.R.Nagaraj and defendants evaded the service of legal notice issued on 20.6.2005 and in the mean time, defendant No.3 got manipulated certain documents and also obtained collusive compromise decrees by filing suit in 20 OS. No.1882/2006 O.S.No.1719/1996 and also obtained his compromise decree in a suit filed by him against defendant No.1 and 2 in O.S.No.399 of 2004 . Hence, the plaintiff further stated that the deceased M.R.Nagaraj, who was the owner of the schedule property under sale deed dated 31.3.1994 died on 8.9.2003 leaving behind his LRs defendant No.1 and 2 and plaintiff also alleged that the deceased M.R.Nagaraj apart from execution of sale agreement dated 10.3.2003 , he has executed GPA on 31.3.2003 and handed over possession of schedule site under part performance of contract under Sec. 53 of T.P.Act and hence, plaintiff has relied upon alleged GPA dated 31.3.2003 marked at Ex.P.7 and claimed possession of schedule site under agreement of sale and under GPA dated 31.3.2003 and hence plaintiff alleged that deceased vendor M.R.Nagaraj put him in possession of suit site under doctrine of part performance of contract under Sec. 53A of T.P.Act and plaintiff alleged and averred that he was/is ready and willing to perform his part of contract , but defendant No.3 got obtained certain collusive decrees by filing suit proceedings for which, plaintiff is not party before the concerned courts. Hence, plaintiff by filing this suit for specific performance of contract and also sought for declaration relief in respect of agreement to sell dated 10.3.2003 seeking declaration that plaintiff has got right to enforce the agreement of sale dated 10.3.2003.
21 OS. No.1882/20069. The defendant No.1 to 17, who are arrayed in the suit have been served with suit summons, wherein defendant No.4 and 12 reported to be dead and their LRs are already on record, wherein defendant No.3 appeared in response to summons served upon him and engaged counsel and filed written statement and other defendants 1 and 2 and 5 to 11 and 13 to 17 though served with summons remained exparte in this suit and defendant No.3 filed written statement and denied the case put forth by the plaintiff and on the contrary, defendant No.3 in his written statement contended that the suit schedule property is the joint family property carved out in Sy.No.40/1 and Sy.No.1/4 which is joint family property and he was minor when the alleged sale deed was executed by his mother dated 31.3.1994 and after he attained majority, he filed a suit for partition and separate possession in O.S.No.1719/1996 and obtained a decree of 1/3rd share in the said suit as the said suit ended in compromise between him and other defendants, who are arrayed in that suit and it is the case of the defendant No.3 that subsequently he has filed a suit for declaration and consequential relief of injunction in O.S.No.399 of 2004 against defendant No.1 and 2 herein, who are LRs of deceased M.R.Nagaraj and the said suit came to be ended in a compromise on 7.2.2005. Hence, defendant No.3 contended that he is the owner of suit schedule site by virtue of partition decree in O.S.No.1719/1996 and also the alleged sale deed executed by him in favour of deceased M.R.Nagaraj is not binding 22 OS. No.1882/2006 upon him in view of compromise in O.S.No.399 of 2004. Hence, defendant No.3 denied the alleged agreement dated 10.3.2003 and on the contrary, defendant No.3 claims that he is the owner of suit site in possession of the sale deed and hence, defendant No.3 resisted the suit by filing written statement.
10. The plaintiff himself has given evidence, who is examined as P.W.1 and he deposed through affidavit evidence filed under Order 18 Rule 4 of CPC , wherein on perusal of the affidavit evidence of P.W.1, wherein he deposed reiterating the facts as pleaded by him in his plaint averments and also P.W.1 stated that the defendants have received earnest money of Rs.25,000/- and defendant No.1 and 2 being the L.rs of liable to execute the sale deed and after death of M.R.Nagaraj, his wife and daughter, defendant No.1 and 2 succeeded to the estate of the deceased as legal heirs. Hence, P.W.1 deposed regarding execution of sale agreement dated 10.3.2003 and also deposed in respect of the GPA executed by late M.R.Nagaraj in his favour on 31.1.2003 and P.W.1 stated that under GPA late M.R.Nagaraj had parted with possession of schedule property in his favour. Hence, P.W.1 in his oral evidence deposed reiterating the facts as pleaded by him in the plaint averments and P.W.1 got marked documents Ex.P.1 to P.21 marked through his evidence. Hence, P.W.1 prayed for grant of relief of specific performance against defendant No.1 and 2, who are 23 OS. No.1882/2006 L.Rs of deceased M.R.Nagaraj and also plaintiff has arrayed other defendants excluding defendant No.3 as defendant No.3 has obtained some collusive decree behind the back of the plaintiff in O.S.No.1719/1996 and in O.S.No.399 of 2004 and hence, P.W.1 has prayed for grant of relief as prayed in the suit for specific performance of contract and for consequential reliefs.
11. The counsel for defendant No.3 cross examined P.W.1, wherein P.W.1 admits that he was doing business in milk vending and real estate business and he knew the son of Revaiah by name Jayadev since 1989 and P.W.1 admits that Jayadev and others have executed GPA in his favour and in favour of his brother Devraj in respect of schedule property. P.W.1 denied his acquaintance with one Thimmamma and Jayamma, but P.W.1 admits that Jayadeva, who is son of 1st wife of Revaiah and P.W.1 denied that Jayadeva is having another brother by name Revanna and P.W.1 also denied that through 2nd wife Revaiah has got a son and 4 daughters and P.W.1 stated that he was approaching the house of Jayadeva whenever sites are sold in order to make payment to Jayadeva as his house was situated at Sunkenahalli and P.W.1 denied his knowledge whether Gangadhar, Jayadeva, Revanna, Jayamma and others are residing in one house and P.W.1 stated that he did not felt it necessary. Hence, he has not enquired how many brothers and sisters to Jayadeva and P.W.1 stated that he 24 OS. No.1882/2006 visited the house of Jayadeva lastly in the year 1994-1995 and P.W.1 stated that the suit schedule property situated in Ittamadu village in Sy.No. 40/3, 4/1 and 1/4 are not converted the lands, but defendant No.3 to 5 and defendant No.9 had formed sites in these lands,. P.W.1 denied his knowledge when Jayadeva had died and he do not know whether Jayadeva was died or not at the time of filing of the suit and P.W.1 admits that he has not produced the GPA executed by defendant No.3 to 5 and defendant No.9 in his favour and also he has not produced the agreement of sale executed by defendant No.1 to 3 and defendant No.9 in this suit and P.W.1 denied that defendant No. 1 to 3 and defendant No.9 did not execute any sale agreement nor GPA in his favour and P.W.1 denied his knowledge that the land Sy.No.40/1, 40/3 and 1/4 are belongs to defendants joint family properties and P.W.1 denied his knowledge that the defendant No.3 had filed a suit against other defendants in O.S.No.1719/1996 for seeking partition and separate possession and P.W.1 stated that he has instructed his counsel to draft the plaint to file the suit and P.W.1 denied that he created documents in order to snatch away the schedule property in collusion with defendant No.4 and P.W.1 denied that as per the compromise decree passed in O.S.No.1719/1996, the schedule property fallen to the share of defendant No.3 and P.W.1 denied that himself and Devarj together have created the suit agreement Ex.P.6 and P.W.1 also denied that the sale consideration amount did not 25 OS. No.1882/2006 reached the vendor under Ex.P.6 and P.W.1 admits that he will produce the GPA and agreement to sell executed by defendant No3. to 5 and defendant NO.9 in this suit and P.W.1 denied his knowledge regarding the suit filed by defendant No.3 against defendant No.1 and 2 herein in O.S.No.399 of 2004 in respect of suit site and P.W.1 denied that the husband of 1st defendant and father of defendant No.2 did not execute any sale agreement as per Ex.P.6 in his favour.
12. P.W.1 in his further cross-examination stated that he has produced documents to show that schedule site belongs to him and P.W.1 admits that there is no katha changed in respect of suit schedule site in his name and he admits that on the strength of GPA executed by defendant No.4, 5 and defendant No.9, he has executed sale deed and sold the suit site in favour of M.R.Nagaraj. However, P.W.1 denied that he has no right to sell the schedule site to M.R.Nagaraj and P.W.1 denied that he has created the sale agreement and GPA in order to gulf the schedule site. P.W.1 denied the sale consideration amount, for which, the site has been sold to M.R.Nagaraj and even P.W.1 do not remember whether the sale consideration amount was paid either in cash or in the form of cheque and P.W.1 admits that when he sold the suit site in favour of M.R.Nagaraj, at that time, there was a building existed in the site measuring 2 squares having ACC sheets house and he admits that he has not 26 OS. No.1882/2006 produced the documents to show that prior to execution of sale deed, he was in possession of the suit site along with existing structure to the court and P.W.1 denied that the schedule site was never in possession of deceased M.R.Nagaraj and it is in the possession of defendant No.3 to 5 and defendant No.9 since beginning and P.W.1 also denied that as per the decree passed in O.S.No.1719/1996 , defendant No.3 is in possession of his share in respect of suit site and also defendant No.3 consisting of sheet house and has leased the said house to the tenant and P.W.1 do not remember the date of death of M.R.Nagaraj after he executed sale agreement and P.W.1 stated that apart from sale agreement Ex.P.6, late M.R.Nagaraj had executed GPA as per Ex.P.7 on 31.3.2003 and he denied that Ex.P.7 is created document by him for the purpose of this suit and P.W.1 denied that there is no signature of executant i.e., M.R.Nagaraj in Ex.P.7 and P.W.1 further stated that he requested deceased Nagaraj rally to execute the sale deed and he admits that he has not issued any written legal notice to late M.R.Nagaraj demanding execution of sale deed and P.W.1 admits that as per the terms of Ex.P.6, sale deed was to be obtained within 3 months time and Ex.P.1 to P.5 are handed over on the day of execution of GPA by late M.R.Nagaraj. However, P.W.1 denied that late M.R.Nagaraj did not delivered Ex.P.1 to P.5 on the date of execution of Ex.P.7 and P.W.1 denied that he has no saleable right to sell the schedule property in favour of M.R.Nagaraj and 27 OS. No.1882/2006 P.W.1 further denied that after deceased Nagaraj came to know the fact that P.W.1 did not have any right to execute sale deed and he has returned the amount including the documents of sale deed and other documents and got returned the amount from him and P.W.1 denied that after demise of M.R.Nagaraj, he has created Ex.P.6 and P.7 and also P.W.1 further denied that at the instigation of defendant No.1 and 2, he tried to interfere in the possession of defendant No.3, for which, 3rd defendant had field the suit in O.S.No.399 of 2004 and P.W.1 denied the suggestion that defendant No.1 and 2 did appeared in O.S.No.399 of 2004 and asserted that they have no right in the suit schedule property and have consented to draw decree in favour of defendant No.3 and at that timer, defendant No.1 and 2 have admitted the possession of defendant No.3 over the suit site.
13. P.W.1 in further cross-examination denied that defendant No.1 and 2 are not residing in the address shown in Ex.P.8 and P.W.1 also denied that in Ex.P.8, he has deliberately shown wrong address of defendant No.1 and 2 and if defendant No.1 and 2 came to the knowledge of Ex.P.6 and P.7, then it goes against him. Hence, he has wrongly shown the address of defendant No.1 and 2 in Ex.P.8 and P.W.1 denied that the legal notice Ex.P.8 is not served upon defendant No.1 and 2 and further P.W.1 denied that defendant No.1 and 2 have not served with legal notice relied as per Ex.P.15 to 21 and P.W.1 denied his knowledge 28 OS. No.1882/2006 regarding date of death of M.R.Nagaraj on 8.9.2003 and P.W.1 denied that he has no right, title and interest over the schedule property nor late M.R.Nagaraj was having any right, title and interest and P.W.1 denied that 3rd defendant is the owner of suit site and he is in possession of the suit site.
14. P.W.2 is examined, who is witness for the sale agreement Ex.P.6 and P.W.2 by his name R.Venkatesh Babu, son of late Ramakrishna has filed his affidavit evidence and stated that he is signatory to the agreement of sale executed in favour of plaintiff by late M.R.Nagaraj and agreement of sale was got prepared by advocate K.Ramanjaneyulu and P.W.2 identified Ex.P.6 and identified his signature marked at Ex.P.6(b) and signature of late M.R.Nagaraj as per Ex.P.6(a) and another attesting witness Krishnamurthy and signature of plaintiff is identified by this witness is at Ex.P.6(e) and P.W.2 stated that sale consideration amount fixed was Rs.1,80,000/- and plaintiff had paid earnest amount of Rs.25,000/- to late M.R.Nagaraj on the date of agreement and late M.R.Nagaraj agreed to receive balance sale consideration amount at time of execution of sale deed. The counsel appearing for defendant No.3 cross examined P.W.2, wherein P.W.2 admits that deceased M.R.Nagaraj was residing in 3rd stage at Banashankari and he came to know about M.R.Nagaraj since 2002 and late M.R.Nagaraj had informed him about the sale of schedule property and hence, he came in acquaintance with him and P.W.2 has not 29 OS. No.1882/2006 admitted anything in his cross-examination directed by counsel for defendant No.3 and P.W.2 stated that except Ex.P.6, he did not signed any other documents and P.W.2 admits that deceased M.R.Nagaraj has executed GPA in the month of March 2003, but this witness do not remember specific date of GPA executed by late M.R.Nagaraj in favour of plaintiff and P.W.2 denied that late M.R.Nagaraj did not handed over any original documents to the plaintiff on the date of Ex.P.6 and P.W.2 denied that the signatures found on Ex.P.6 and P.7 are not belongs to late M.R.Nagaraj and the said signatures are committed with forgery and P.W.1 denied his knowledge that the schedule property belongs to 1st defendant and he further denied that since he is a friend of plaintiff and he is deposing false evidence in this case.
15. Defendant No.3 has given rebuttal evidence as D.W.1, who has filed affidavit evidence under Order 18 Rule 4 of CPC and on perusal of the chief examination of P.W.1, wherein he deposed that his father Revaiah died in the year 1979 and his father had left two wives, 1st wife namely Thimmamma and 2nd wife namely Jayamma and through 1st wife, Thimmamma had got two sons namely Jayadeva and Revanna and 2nd wife Jayamma was having 5 children out of it, 4 daughters and one son by name Savithri, Shankari, Jayasheela and Yashoda and sonof Jayamma was defendant No.3 and D.W.1 stated that the joint family i.e., property belongs to his father was having Sy.No.40/1, ¼-B of Ittamadu 30 OS. No.1882/2006 village measuring 1 acres 2 guntas and 30 guntas respectively and they are in the possession of joint family members and after demise of his father Revaiah, the affairs of the joint family was looked after by Jayadeva and he was managing the properties of joint family, wherein his mother Jayamma was illiterate woman and the LTM of his mother was obtained on blank documents on the pretext of change of katha of the lands in the Revenue Department. Hence, D.W.1 stated that Jayadeva without giving any proper information to his mother by obtaining LTM of his mother got created documents and Jayadeva did not kept accounts properly in respect of joint family properties. Hence, he suspected the act of Jayadeva and filed the suit for partition claiming his share against Jayadeva and others in O.S.No.1719/1996 and subsequently that suit came to be compromised and he was allotted with schedule "A" properties and D.W.1 stated that there are sites formed in Sy.No.40/1 and 1/4 and to his share site No.18, 30, 31 to 33,35, 36, 40, 41, 42, 42A,46A,47 and 52 are allotted to his share and the said suit was compromise don 23.1.2003 and D.W.1 stated that he has constructed ACC sheet house in the share allotted to him and he has leased out the said house to tenants and there are six tenants residing in the said houses and they are paying rents and hence D.W.1 stated that he is in possession of their property suit site along with constructed ACC sheet house and obtained electrical connection. Hence, D.W.1 stated that schedule site belongs to joint family property and further 31 OS. No.1882/2006 D.W.1 stated that he has also filed suit in O.S.No.399 of 2004 against defendant No.1 and 2 for declaration and injunction against defendant No.1 and 2 herein (LRs of deceased M.R.Nagaraj) and defendant No.1 and 2 appeared in that suit and admitted that the husband of defendant No.1 and father of defendant No.2 did not have any right, title and interest and accordingly, defendant No.1 and 2 have entered into compromise on 7.2.2005 in O.S.No.399 of 2004 and accordingly, O.S.No.399 of 2004 came to be decreed on 8.2.2005. Hence, D.W.1 by his evidence and coupled with documents Ex.D.1 and D.2 ie., certified copy of plaint in O.S.No.399 of 2004 and certified copy of compromise petition filed in O.S.No.399 of 2004 dated 7.2.2005 and coupled with his affidavit evidence stated that the plaintiff has created Ex.P.6 and P.7 in order to snatch away the suit schedule site and D.W.1 stated that the alleged agreement of sale Ex.P.6 is illegal and not enforceable agreement. Hence, D.W.1 by his rebuttal evidence denied the case of the plaintiff and D.W.1 pray for dismissal of the suit filed by the plaintiff.
16. The counsel appearing for plaintiff cross examined D.W.1 at length, wherein D.W.1 admits that schedule site comes in Sy.No.40/1 and 1/4 -B of Ittamadu village and he also admits that total extent of this Survey number measuring 1 acre 32 guntas , it is converted into residential sites and D.W.1 admits that he has filed partition suit in O.S.No.1719/1996 against his mother and step brothers and 32 OS. No.1882/2006 others, wherein D.W.1 admits that Smt. Jayamma is having one son and 4 daughters and he is the only son of defendant No.5 and D.W.1 admits that O.S.No.1719/1996 ended in compromise and D.W.1 denied that prior to filing of partition suit, all the suits in Sy.No.40/1 and 1/4 -B were sold through registered sale deeds and he admits that in Ex.D.12 in compromise petition site numbers are shown in the compromise petition and D.W.1 admits that he has obtained encumbrance certificate at the time of filing partition suit and D.W.1 denied that he has executed GPA in favour of T.R.Devaraj and Yoganand and he denied that site No.40 was already sold through registered sale deed dated 31.3.1994 and D.W.1 stated that he is deposing that sale deed dated 31.3.1994 is not pertaining to his site. Hence, he has used the word bogus in his deposition in respect of this registered document and D.W.1 admits that at the time of entering into compromise in the suit filed by him, they have prepared layout plan and there is mention regarding suit site No.40 and D.W.1 stated that he has no impediment to produce the layout plan produced by him in the suit filed by him and D.W.1 admits that in the layout plan, the boundaries of site No.40 is demarcated.
17. D.W.1 in further cross-examination held that on 7.3.2014 admits regarding Ex.P.14 sketch map (certified copy) which was produced in O.S.No.1719/1996 , but D.W.1 denied this sketch map confronted to him at Ex.P.14 and 33 OS. No.1882/2006 D.W.1 denied that there is no nexus between the schedule site of the suit and site No.40, which is claiming as per the sketch map filed in O.S.No.1719/1996 and D.W.1 do not know site No.40 shown in Ex.P.12 compromise petition and schedule site of the suit are one and the same property and he denied that site No.40 as shown in Ex.P.12 is not allotted to him and he do not know whether in respect of suit site sale deed was standing in the name of M.R.Nagaraj and he admits that defendant No.1 and 2 are the wife and daughter of M.R.Nagaraj and he do not know prior to compromise arrived in O.S.No.1719/1996 already sale deed executed on 31.3.1994 and D.W.1 denied that in the sale deed Ex.P.1, himself, defendant No.5 and deceased defendant No.4 have joined in execution of sale deed and he admits that defendant No.5 is his mother and deceased defendant No.4 and defendant No.9 Revaiah are his brothers born to 1st wife of his father and D.W.1 denied that as on the date of filing O.S.No.1719/1996 there was no sites available on that day and all the sites formed in Sy.No.40/1 and adjoining lands are already sold in favour of respective purchasers.
18. D.W.1 denied his knowledge about Ex.P.6 executed in favour of defendant No.6 and he admits that he has filed the suit in O.S.No.399 of 2004 against defendant No.1 and 2 for declaration and injunction and D.W.1 do not remember whether he had obtained encumbrance certificate from the office of Sub Registrar and other documents and he do not 34 OS. No.1882/2006 know as on the date of filing of O.S.No.399 of 2004 already site No.40 was sold under sale deed to one M.R.Nagaraj and he do not know what are the documents furnished by him to his counsel to draft the plaint in O.S.No.399 of 2004 and D.W.1 admits that he has paid an amount of Rs.1,50,000/- to defendant No.1 and 2 in O.S.No.399 of 2004 and D.W.1 denied that he has paid that amount of Rs.1,50,000/- to defendant No.1 and 2 in O.S.No.399 of 2004 out of the amount received from M.R.Nagaraj and D.W.1 denied that in order to snatch the schedule property, which was already sold by himself, his mother and his deceased brother by making false information to the court and obtained decree in the suit filed by him.
19. The counsel for the plaintiff again cross examined D.W.1 in respect of the further documents produced by defendant No.3, wherein D.W.1 further examined and got marked certain documents like lease agreement , rent agreement and also photographs, BWSSB documents, BESCOM documents, which are marked in his further evidence from Ex.D.3 to D.25 and C.D is marked as per Ex.D.21 and counsel for plaintiff cross examined D.W.1 in respect of Ex.D.3 to D.25, wherein he admits that he obtained water tap connection on 23.7.2013 and he has deposited amount on 26.2.2013 to BWSSB and D.W.1 denied that he took power connection to house property since 5.9.2013 and D.W.1 denied that he has created Ex.D.3 and 35 OS. No.1882/2006 D.4 by putting ante date and D.W.1 denied that Ex.D.12 to D.20 are not pertaining to suit schedule property.
20. After appreciation of the oral evidence of P.W.1 and 2 and that of D.W.1, wherein though D.W.1 has denied Ex.P.6 and p.7, but plaintiff by examining attesting witness P.W.2 and by producing Ex.P.6 has proved that the husband of 1st defendant and father of defendant No2. late M.R.Nagaraj executed sale agreement dated 10.3.2003 in respect of suit schedule site in favour of plaintiff herein and accordingly, plaintiff has proved Issue No.1 in respect of Ex.P.6 and also Ex.P.6 further shows that an amount of Rs.25,000/- was paid towards earnest amount by the plaintiff to the vendor namely late M.R.Nagaraj on the date of Ex.P.6 and defendant No.1 and 2 remained exparte in this suit and they have not denied Ex.P.6 by filing any written statement and on the contrary, P.W.1 and 2 have deposed in respect of Ex.P.6 and by producing document Ex.P.6, which is primary evidence i.e., agreement of sale. Hence, Issue No.1 is proved by the plaintiff. On perusal of evidence of D.W.1, wherein it is admitted fact that Sy.No.40/1 and 1/4 -B of Ittamadu village were joint family properties held by defendant No.3 to 5 and deceased Revaiah father of defendant, wherein plaintiff appears to be minor as on the date of execution of sale deed Ex.p.1 by his mother Jayamma and though defendant No.3 is party as party No.4 to sale deed Ex.P.1, but apparently defendant No.3 was minor below 18 years as on the date of 36 OS. No.1882/2006 execution of Ex.P.1 and plaintiff/P.W.1 has not produced the alleged GPA and agreement of sale executed on 3.7.1991 to prove the transfer of valid title, wherein P.W.1 has not produced the alleged power of attorney , agreement of sale and joint affidavit though P.W.1 admits in his evidence that he can produce the said documents, which are in his custody, wherein P.W.1 admits that the GPA executed by defendant No.3 to 5 and defendant No.9 and agreement of sale and hence, for withholding of said document i.e., GPA and agreement of sale dated 3.7.1991, wherein an adverse inference has to be drawn against P.W.1 for non production of material documents. On the contrary the defendant No.3 had filed the suit in O.S.No.1719/1996 against his mother and his said brothers and others for partition and separate possession as per Ex.P.1 and this suit is filed on 15.6.2002 and P.W.1 had claimed 1/3rd share in respect of schedule property, which is land measuring 1 acre 32 guntas and the suit came to be compromise as per Ex.P.12 on 23.1.2003. Though defendant No.3 has not impleaded the plaintiff herein in O.S.No.1719/1996 and O.S.No.399 of 2004, but the decree for partion is passed on 22.1.2003 much prior to execution of sale agreement by Nagaraj in favour of plaintiff and defendant No.3 has filed the suit after he attained majority and claimed partition in respect of joint family properties in O.S.No.1719/1996. The plaintiff has not sought for declaration relief in respect of the alleged decrees passed in O.S.No.1719/1996 and also in O.S.No.399 of 2004 and there 37 OS. No.1882/2006 is no sufficient pleadings by the plaintiff in respect of two suits filed by defendant No.3 and decree obtained in those suits. On the contrary, Ex.P.7 relied by the plaintiff is not attested by Notary for any other competent authority to be sworn to by GPA and as such, Ex.P.7 is inadmissible document in evidence and also it is incomplete document for want of attestation and execution. Hence, the claim of possession of plaintiff claimed under Ex.P.7 in respect of suit site is not tenable in the eyes of law and on the contrary, plaintiff failed to prove that the compromise decree in O.S.No.1719/1996 is obtained by fraudulent means by defendant No.3 herein and on the contrary, defendant No.3 has proved that he has sought for partition of 1/3rd share in the joint family properties in respect of Sy.No.40/1 and ¼-B of Ittamadu village and that suit is ended in compromise prior to filing of the suit by the plaintiff and defendant N.3 has filed the suit in O.S.No.399 of 2004 against defendant No.1 and 2 seeking declaration and injunction and plaint was presented on 16.1.2004, much prior to filing of suit by the plaintiff and the suit was compromised between plaintiff/defendant No.3 herein and defendant No.1 and 2 in this suit and also defendants in that suit on 7.2.2005. The plaintiff has produced Ex.P.7, but it is inadmissible piece of evidence in this suit as it is not a valid GPA executed by deceased R.Nagaraj in favour of plaintiff. The plaintiff has produced Ex.P.8 legal notice dated 28.6.2005 wherein he has caused legal notice much after lapse of 2 years of execution of Ex.P.6 38 OS. No.1882/2006 and this notice is issued to the LRs of deceased Nagaraj demanding execution of sale deed by the by the plaintiff for the first time and on the contrary, the terms of Ex.P.6 is sale deed is to be executed within 3 months from 10.3.2003 and plaintiff was to obtain sale deed on or before 10.6.2003 and time was the essence of contract and plaintiff has not produced any documents to show that he had kept ready the amount of balance amount of Rs.1,55,000/- to be paid to the deceased M.R.Nagaraj by producing any bank statement or any other document. On the contrary, by perusal of Ex.P.1, wherein the plaintiff and his brother T.R.Devaraj are the power of attorney holders of defendant No.3 to 5 and defendant No.9 in support of Ex.P.1. On perusal of Ex.P.6, wherein time was the essence of contract and plaintiff did not caused any legal notice within 10.6.2003, but late R.Nagaraj to seek execution of sale deed Ex.P.1, wherein no permission from the competent court as required under Sec. 8 of Hindu Minority and Guardiansgiup Act 1956 which are snot obtained to alienate the minors interest by Jayamma, the mother of defendant N.3 to alienate the minors interest. Hence, Ex.P.1 is also hit by the provisions of Sec. 8 of Hindu Minority and Guardianship Act 1956 and hence, considering all these legal aspects of the matter, wherein Ex.P.6 and P.7 appears to be a doubtful and suspicious document created and relied by the plaintiff, wherein time was the essence of contract and P.W.1 failed to prove the ingredients of Sec.16© of Specific Relief Act and also plaintiff failed to prove that 39 OS. No.1882/2006 still Ex.P.6 is subsisting and enforceable against defendant No.1 and 2. Hence, I hold that plaintiff failed to prove Issue No.4 against defendants and on the contrary, he has also further failed to prove that compromise obtained by defendant No.3 in O.S.No.1719/1996 is a fraudulent decree and accordingly, I answer Issue No.1 in affirmative, Issue No.2 and 4 in negative against plaintiff and plaintiff also failed to prove readiness and willingness as he has not obtained sale deed within 3 months from the date of execution of Ex.P.6 and time was the essence of contract and hence, plaintiff also failed to prove ingredients of Sec.16(c) of Specific Relief Act. Accordingly, Issue No.5 is also answered in negative and on the contrary defendant No.3, who has obtained the decree in O.S.No.1719/1996 for partition and separate possession and also though he has obtained a decree against defendant No.1 and 2 in O.S.No.399 of 2004 on 7.2.2005 and though plaintiff is not party in O.S.No.399 of 2004. However, the plaintiff has failed to prove that Ex.P.6 is enforceable agreement of sale till subsisting of enforce against defendant No.1 and 2. Hence, I hold that plaintiff also not established that the decree obtained by defendant No.3 are in collusion and the said decrees are fraudulent and obtained during pendency of the suit. Accordingly, defendant No.3, who has obtained his share after he attained majority by filing partition suit and as such, Issue No.3 is proved by defendant No.3 and accordingly, Issue No.3 is answered in affirmative.
40 OS. No.1882/200621. Issue No.6 and 7:- The plaintiff has sought for the relief of specific performance of contract and for injunction relief as consequential relief against defendant No.1 and 2 and other defendants and the suit is filed by the plaintiff against LRs of deceased M.R.Nagaraj and other defendants 3 to 17 since this court held that Ex.P.7 is not proved by the plaintiff and it is inadmissible document for want of execution and attestation by the competent authority and Ex.P.6 is not enforceable agreement of sale and it is not subsisting as on the date of filing the suit, wherein plaintiff has not produced alleged GPA executed by defendant No.3 to 5 and defendant No.9 to execute sale deed Ex.P.1. Hence, plaintiff has failed to prove his readiness and willingness as required under Sec. 16(c) of Specific Relief Act and also failed to prove Ex.P.6 agreement of sale is still subsisting agreement of sale, enforceable contract against defendant No.1 and 2, whereas notice Ex.P.8 is caused after lapse of 2 years of execution of Ex.P.6 by the plaintiff and time was the essence of contract and the suit filed by the plaintiff on 6.3.2006, wherein Ex.P.6 is not enforceable contract and also having no subsisting value to execute against defendant No.1 and 2. Hence, plaintiff failed to prove his possession in response to Sec.53(A) of T.P.Act over the schedule site and also plaintiff failed to prove and establish his case as pleaded in the plaint and on the contrary, defendant No.3 is in possession of schedule property and also he has leased out the said constructed ACC sheet house over the schedule 41 OS. No.1882/2006 property to tenants and as such, defendant No.3 proved his possession in respect of suit site No.40 carved out in Sy.No.40/1 and hence, plaintiff has utterly failed to prove that Ex.P.6 is still subsisting agreement and he has got enforcement right for Ex.P.6 against defendant. Hence, plaintiff is not entitled for any relief of specific performance of contract much less consequential relief and also not entitled for any declaration relief sought for in respect of Ex.P.6. Hence, Issue No.6 and 7 are answered in negative against plaintiff.
22. Issue No.4: In view of my findings on Issue No.1 to 7 and for the reasons recorded thereon, the suit of the plaintiff deserves to be dismissed. However, in the facts and circumstances of the case, without any order as to costs. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff against defendants is dismissed without any order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 18th day of February, 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.42 OS. No.1882/2006
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 T.R.Yogananda P.W. 2 Sri. R.Venkatesh Babu
List of documents exhibited for plaintiff:-
Ex.P.1 Original sale deed dated 31.3.1994 executed by R.Jayadev and others in favour of M.RNagaraj Ex.P.2 Katha certificate in the name of M.R.Nagaraj dated 17.7.1998 Ex.P.3 Tax paid receipt dated 13.7.1998 Ex.P.4 Betterment charges paid receipt dated 20.3.1998 Ex.P.5 Notice issued by BBMP under Sec.
143 of KMC Act dated 25.6.1998
Ex.P.6 Sale agreement dated 10.3.2003
executed by M.R.Nagaraj in favour of
Sri. T.R.Yogananda
Ex.P.7 G.P.A executed by R.Nagaraj in favour
of Sri. T.R.Yogananda dated
31.3.2003
Ex.P.8 Office copy of Legal notice dated
28.6.2005 issued by plaintiff to
defendant 1 and 2
43 OS. No.1882/2006
Ex.P.9 and 10 Unserved returned RPAD postal
covers
Ex.P.11 Certified copy of amended plaint in
O.S.No.1719/1996 filed by defendant
No3. against R.Jayamma and others
Ex.P.12 Certified copy of compromise petition
under Order 23 Rule 3 of CPC dated
22.1.2003 in O.S.No.1719/1996
Ex.P.13 Certified copy of order sheet in
oan1719/1996 dated 11.3.1996
Ex.P.14 Layout map in Sy.No. 40/3 and 40/1
of Ittamadu
Ex.P.15 to P.21 The telegram notice dated 1.3.2006 to defendant No.1 and 2 ( 7 in numbers) List of witnesses examined for defendant:
DW.1 Sri. R.Gangadhar List of documents exhibited for Defendant:-
Ex.D.1 Certified copy of plaint in
O.S.No.399/2004 filed by defendant
No.3 against defendant No.1 and 2
dated 16.1.2004
Ex.D.2 Certified copy of compromise petition
in O.S.No.399/2004 between
defendant No.3 herein and wife and
daughter of M.R. Nagaraj
44 OS. No.1882/2006
Ex.D.3 Rental agreement dated 1.12.2003
executed by defendant No.3 in favour
of Sri. Paconisamy
Ex.D.4 Rental agreement dated 12.3.2004
executed by defendant No.3 in favour
of Sethamma and Ninganna
Ex.D.5 Application form submitted to
BWSSB, Bangalore by defendant No.3
dated 23.2.2013
Ex.D.6 Work order issued by BWSSB dated
20.3.2013
Ex.D.7 Challan copy issued by BWSSB dated
26.2.2013
Ex.D.8 Receipt for having paid water charges
dated 24.11.2013
Ex.D.9 to D.11 Three receipts for having paid
electricity charges
Ex.D.12 to Photographs
D.20
Ex.D.21 C.D
Ex.D.22 Water demand dated 9.4.2014
Ex.D.23 to 25 Three electricity bills
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
45 OS. No.1882/2006
46 OS. No.1882/2006