Bangalore District Court
Sri.Wahad Khan vs Smt. Maqbool Jan on 8 January, 2016
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 8th day of January 2016.
PRESENT: SRI.S.V.Kulkarni, B.Com., LLB(Spl).
XI Addl.City Civil Judge, B'lore city.
O.S.No.4486 of 1998
PLAINTIFFS: Sri.Wahad Khan
S/O Karim Khan,
aged about 45 years,
residing at No.28th Main Road,
(Near B.T.M.Layout, No.23,
Jai Bhimanagar, 6th Cross,
Thavarekere, Bengaluru.
(Sri.Thirumalaiah, advocate)
: Vs :
DEFENDANT: 1. Smt. Maqbool Jan
w/o Late K.Nazeer,
aged about 55 years,
2. Afzal, son of late K.Nazeer,
aged about 30 years,
Both are residing at No.8,
1st cross, V.R.Puram, 5th Main
Road, P.G.Halli, Bengaluru-03
3. Smt. Akthar jan
W/O Late K.Nazeer,
aged about 45 years,
4. Sri.Afzar S/O Late K.Nazeer,
aged about 18 years,
2 O.S.4486 of 1998
Both are residing at No.655, 31st
Cross, Masque Road, 26th Main
Road, Thilaknagar, Bengaluru-41
5. Babu, father's name not
known to the plaintiff,
aged about 33 years,
Proprietor of Dilkush Tea
House, No.134, Lalbagh Fort
Road, Bangalore-04
6. Sri.Zulfikar Hafeez,
son of A.Abdul Hafeez,
aged about 40 years,
residing at No.48, 1 Main road,
Parvathipuram, Bangalore -4
7. Yasmeen Taj,
w/o Noor, aged about 36 years,
R/at No.537, Al. Majid Islamin,
30th "B" Cross, Tilaknagar,
Jayanagar, Bengaluru-41
8. Taseen Taj, W/O Chand
Basha, aged aboaut 33 years,
R/at No.27-31, Al.Majid
Islamin, 30th "B" Cross,
Tilaknagar, Jayanagar,
Bengaluru-41
(Sri. F.V.A, advocate for D.1 to D.5,
D.7 and D.8
Sri. S.N.G. Advocate for D.6
Date of the institution of suit: 9.6.1998
Nature of the suit: Specific performance
3 O.S.4486 of 1998
Date of the commencement of 17.6.2008
recording of the evidence :
Date on which the judgment 8.1.2016
was pronounced :
Total duration: Year/s Month/s Day/s
17 06 29
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 2.3.1977 said to have been executed by late K.Nazeer in respect of suit schedule property and plaintiff has prayed for declaration that the sale deed executed by defendant No.1 to 4 and defendant No.7 and 8 in favour of defendant No.6 dated 14.8.1998 is not binding upon plaintiff and plaintiff has sought for direction to the defendants to execute regular registered sale deed in his favour and to deliver vacant possession of schedule property and for other reliefs as prayed in the suit.
2. It is the case of the plaintiff that he is the brother of late K.Nazeer , who was the owner of the suit schedule property, wherein 1st defendant and 3rd defendant are the 4 O.S.4486 of 1998 wives of late K.Nazeer, wherein defendant No.2 and 4 are the sons of late K.Nazeer and defendant No.7 and 8 are the daughters of late K.Nazeer, who was the absolute owner of property bearing No. 48 totally measuring 30 X 48 ft., situated at 1st main road, Parvathipuram, Bengaluru as late K.Nazeer had purchased this property under registered sale deed dated 19.11.1975 and thereby plaintiffs brother late K.Nazeer, who was the absolute owner of property bearing No.48 had offered to sell the schedule property measuring north-south 48 ft., and east-west 10 ft., towards northern side of suit schedule property out of its total measurement of 30 X 48 ft., in favour of plaintiff for a total sale consideration amount of Rs.12,000/- and as such, late K.Nazeer had entered into agreement of sale that plaintiff to sell away the suit schedule property and executed agreement of sale on 2.3.1977 and had received entire sale consideration amount of Rs.12,000/- from the plaintiff and he has acknowledged the receipt of the sale consideration amount, wherein late K.Nazeer has specifically agreed with plaintiff to execute regular sale deed in his favour whenever the demand made by the plaintiff and it is the case of the plaintiff that the vendor i.e., K.Nazeer had handed over the vacant possession of the schedule property to the plaintiff under part performance of contract and also he had handed over all the original documents including tax paid receipts in respect of suit schedule property to the plaintiff on 2.3.1977. Hence, plaintiff claims to be absolute owner in possession and 5 O.S.4486 of 1998 enjoyment of suit schedule property and he is paying tax to the schedule property to the concerned authorities . The said K.Nazeer (vendor) of the property died in the year 1979 leaving behind him, defendant No.1 to 4 and 7 and 8 as his legal heirs to succeed to the estate of deceased K.Nazeer. It is also case of the plaintiff that after he entered into agreement to sell, he built a asbestos sheets roofed building on the schedule property spending a sum of Rs.15,000/- and plaintiff, who has been residing in the schedule property for 5 years and in the year 1986, plaintiff had let out the premises in question to one Sri.K.N.Jagannath on monthly rent of Rs.150/-, wherein the said tenant Sri.K.M.Jagannath had vacated the premises in the year 1989. Thereafter, the defendants have taken the said premises on monthly rent of Rs.250/- and they have been paying monthly rent to the plaintiff up to 1995. Thereafter, they did not pay the rents nor vacated the premises and all of a sudden in the 2nd week of May 1998, the defendant No.1 to 4 and 7 and 8 have vacated the premises in question without informing the plaintiff, wherein the plaintiff reliably learnt that the defendant No.1 to 4 and 7 and 8 have vacated the premises without informing the plaintiff and on enquiry that the defendant No.1 to 4 and 7 and 8 have sublet the premises in favour of defendant No.5 and on verification , the plaintiff came to know that the property in question has not been transferred or alienated to anybody. The 5th defendant has no authority to occupy the premises in question, wherein late 6 O.S.4486 of 1998 K.Nazeer had agreed to execute regular sale deed whenever demanded by the plaintiff. Hence, plaintiff was/is ready and willing to perform his part of contract, wherein plaintiff has requested the defendant No.1 to 4 and 7 and 8 on number of times to execute sale deed in his favour, but defendants in one or the other pretext evaded to execute sale deed in favour of plaintiff inspite of plaintiff's repeated requests and demands and plaintiff constrained to cause legal notice to defendants dated 16.5.1998 calling upon them to execute regular sale deed in his favour and defendants have replied the notice dated 25.5.1998, wherein defendants have issued untenable reply and plaintiff has obtained encumbrance certificate from the concerned Sub Registrar office, which is clearly goes to show that no transactions such as sale took place in respect of schedule property. The defendant No.6, who is running tea shop at the address given in the cause title and alleged sale transaction took place in favour of 6th defendant after service of notice to defendants in respect of suit schedule property and as such, the alleged sale deed dated 14.8.1998 executed by defendant No.1 to 4, 7 and 8 in favour of defendant No.6 in respect of suit schedule property is not binding upon plaintiff and plaintiff further alleged that the defendants have no manner of right, title and interest over the suit schedule property, wherein defendants are powerful and influential persons in the locality and as such, plaintiff constrained to file the suit for the relief of specific performance of contract and plaintiff further alleged that the 7 O.S.4486 of 1998 defendant No.6, who is the stranger person to the schedule property. Hence, plaintiff has alleged cause of action for the suit arose on the date of execution of sale agreement i.e., on 2.3.1977 and when he demanded registration of sale deed to the defendants by issuance of legal notice on 16.5.1998 and on subsequent dates in view of reply dated 25.5.1998 as defendants have refused to execute sale deed denying the sale agreement dated 2.3.1977. Hence, this suit.
3. The defendant No. 1 to 4 filed written statement contending that the suit is not maintainable either in law or on facts and suit is liable to be dismissed. The defendant No.1 to 4 have admitted the averments made in para No.1 partly to the extent that defendant No.1 and 3 are the wives of late K.Nazeer and defendant No.2 and 4 are the son of late K.Nazeer and defendants further contended that late K.Nazeer died left behind him in all 6 legal representatives i.e., defendant No.1 to 4 and two daughters namely Yasmeen Taj and Taseen Taj and defendants have denied that the 5th defendant is unauthorized occupant of schedule premises and they admits that late K.Nazeer was the absolute owner of the property bearing No.48. But defendants have denied the measurement of the property bearing No.48 as alleged by the plaintiff as it is measuring 30 X 48 ft.,, but defendants contended that the property held by K.Nazeer was measuring 32 X 42 ft., and defendant No.1 to 4 have specifically denied the averments made in para No.2 of the plaint and also 8 O.S.4486 of 1998 denied specifically the allegations that K.Nazeer, who was the owner of property bearing No.48 had offered to sell the portion of schedule property in favour of plaintiff measuring north-south 48 ft., and east-west 10 ft., towards northern side of suit schedule property for Rs.12,000/- and they specifically denied the execution of sale agreement dated 2.3.1977 by late K.Nazeer and also receipt of entire sale consideration amount by the deceased K.Nazeer from the plaintiff and defendant No.1 to 4 have denied the allegations regarding handing over of possession in favour of plaintiff under part performance of contract by late K.Nazeer and also they specifically denied handing over of original documents including tax paid receipts in respect of schedule property and defendants have denied plaintiff's possession and enjoyment over the schedule property as agreement holder and they also specifically denied that plaintiff has inducted tenant after he entered into an agreement of sale. However, defendants admits that K.Nazeer died in the year 1979 leaving behind defendant No.1 to 4 and defendant No.7 and 8 as his legal heirs. But they have denied that after demise of K.Nazeer, the plaintiff also legal notice of deceased K.Nazeer and defendants contended that plaintiff was never in possession of schedule property at any point of time and he paid any tax in respect of schedule property to the concerned municipal authorities and defendants contended that at the time of death of late K.Nazeer, defendant No.2 and 4 and 7and 8 being minors and 9 O.S.4486 of 1998 defendant No.1 and 3 being the ladies had no support of any male members in the family, wherein the plaintiff being the brother of late K.Nazeer took steps to manage the affairs of defendants family and during that time, plaintiff managed to commit theft of original deeds of late K.Nazeer along with few tax paid receipts and in fact, the perusal of the tax paid receipt produced by the plaintiff discloses that the tax in respect of schedule property subsequent to the death of K.Nazeer and thereby question of handing over tax paid receipts by late K.Nazeer during his life time does not arise at all and defendant No.1 to 4 have denied the allegations by the plaintiff that he has built ACC sheet roofed building over the schedule property by spending an amount of Rs.15,000/- and also they denied that the plaintiff, who has been residing in the schedule premises for a period of 5 years and later in the year 1986, he had leased to said premises in favour of one K.M.Jagannath, who was tenant occupying the schedule property on a monthly rent of Rs.150/- and subsequently the said tenant had evicted the premises in the year 1989 and defendants specifically denied that after the alleged tenant Jagannath vacated the premises and thereafter they have taken this premises on a monthly rental of Rs.250/- and they have paying rent to the plaintiff till 1995 and thereafter wards , defendants have not paid the rent nor vacated the premises and subsequently they vacated the premises in the 2nd week of May 1998 without notice to the plaintiff and defendants further denied that plaintiff came to know that 10 O.S.4486 of 1998 occupation of defendant No.5 in respect of schedule property was unauthorized and without any sanctity and hence, defendant No.1 to 4 have specifically denied the execution of alleged agreement of sale dated 2.3.1977 executed in favour of plaintiff in respect of schedule property and on the contrary, defendant No.1 to 4 contended that they are in possession of suit schedule property right from the date of acquisition by late K.Nazeer and thereby question of plaintiff either residing therein for 5 years or putting any construction over the schedule property or letting out to the alleged tenant K.M.Jagannath and again letting the same in favour of these defendants does not arise and these averments made by the plaintiff arbitrator nothing but false allegations and plaintiff has taken different stand in his legal notice caused on 16.5.1998 contrary to the pleadings as averred in the plaint and there is no absolutely iota of evidence in respect of plaint allegations and the defendants contended that plaintiff has managed to commit theft of original sale deed belongs to K.Nazeer taking advantage of his death and a concocted suit agreement of sale with a view to gain wrongfully the property. Hence, defendants specifically denied the alleged transaction between plaintiff and K.Nazeer and also they denied the plaintiff's readiness and willingness and at no point of time, plaintiff neither spoken a work with regard to the fictitious agreement nor requested these defendants to execute sale deed and in fact, defendant No.1 to 4 were shocked to receive the notice dated 16.5.1998, wherein plaintiff forwarded his 11 O.S.4486 of 1998 unholy claim and these defendants have been replied the said notice suitably and defendants denied the receipt of the plaint averments and on the contrary, they contended that they being the absolute owners in possession of suit schedule property and its composite portion sought for transfer of katha in the name of defendant No.1 and 3 and thereafter, they being unable to enjoy the property jointly have entered into an agreement of sale with one Mr.Zulfiqar Ali as early as 29.11.1997 along with daughters of late K.Nazeer and pursuant to the said agreement of sale, they execute absolute sale deed in favour of defendant No.6 and delivered vacant possession of the premises No.48 to the purchaser, who is in actual possession and enjoyment of the schedule property as absolute owner thereof. Hence, defendants have taken specific plea of suit is bad for non joinder of proper parties and plaintiff has not paid sufficient court fees and on this count also suit is liable to be dismissed and there is no cause of action for the suit and the alleged cause of action is imaginary to suit the convenience of the plaintiff and suit is barred by limitation. Hence, defendant No.1 to 4 represented by their GPA holder have filed this defense through written statement filed in this suit on 21.3.2001 and pray for dismissal of the suit with exemplary costs in the interest of justice and equity.
4. Defendant No.6, who has been impleaded by his own application in the suit has filed written statement contending 12 O.S.4486 of 1998 that suit is false, frivolous and vexatious and suit is not maintainable either in law or on facts of the case and defendant No.6 contended that defendant No.1 to 4 are the LRs of deceased K.Nazeer and deceased K.Nazeer had left in all six legal heirs, wherein he has got two daughters and as such, suit is bad for non joinder of all the legal heirs of deceased K.Nazeer and defendant No.6 denied that defendant No.5 is unauthorized occupant in respect of schedule property and defendant No.6 admitted that late K.Nazeer was the absolute owner of schedule property bearing No.48, which measuring 32 X 43 ft., and not 30 X 48 ft., as alleged by the plaintiff and defendant No.6 denied the averments made in para No.2 to 5 and called upon the plaintiff to prove these averments and it is contended by the defendant No.6 that plaintiff has not approached this court with clean hands, wherein the suit is filed by way of vengeance against defendant No.1 to 4 and defendant No.6 in para No.7 of written statement claims that he is the sole absolute owner having exclusive possession and enjoyment over the schedule property as he has purchased the schedule property from defendant No.1 to 4 and two others pursuant to an agreement of sale dated 29.11.1997 and subsequently he obtained sale deed registered on 14.8.1998 for valuable consideration executed by defendant No.1 to 4 and 7 and 8. Hence, defendant No.6 claims that he is the bonafide purchaser of suit schedule property along with abutting portion for valuable sale consideration amount without notice 13 O.S.4486 of 1998 of alleged sale agreement dated 2.3.1977 and defendant No.6 claims that he is in lawful possession and enjoyment of the purchased property wherein plaintiff has deliberately filed the suit only in order to harass defendant No.6 and to knock off the schedule property. Hence, defendant No.6 in his written statement has taken defense that he is bonafide purchaser of schedule property from the lRs of deceased K.Nazeer under sale deed dated 14.8.1998 without notice of alleged sale agreement.
5. Defendant No.7 and 8 have filed their written statement and they contended that suit is not maintainable either in law or on facts and on perusal of the written statement filed by defendant No.7 and 8, wherein they have taken same defense in their written statement as compared to the written statement filed by defendant No.1 to 4. Hence, defendant No.7 and 8 have denied the execution of alleged sale agreement in favour of plaintiff by their father K.Nazeer and also they specifically denied execution, receipt of alleged sale consideration amount by deceased K.Nazeer from the plaintiff. Hence, on perusal of written statement filed by defendant NO.7 and 8, wherein they have denied the entire case as pleaded by the plaintiff and defendant No.7 and 8 contended that the defendant No.1 to 4 and themselves are the absolute owners and they sought for transfer of katha in the name of defendant No.1 and 3 and thereafter they being unable to manage the property , they have entered into 14 O.S.4486 of 1998 agreement of sale with one Mr.Zulfiqar Ali on 29.11.1997 and thereafter, they executed sale deed and delivered vacant possession of schedule premises in favour of purchaser Mr.Zulfiqar Ali , who is in lawful possession as absolute owner thereof. Hence, defendant No.7 and 8 have taken similar contention as that of defendant No.1 to 4 in respect of said defense from para No.8 to 12. Hence, defendant NO.7 and 8 have contested the suit filed by the plaintiff and pray for dismissal of the suit with exemplary costs in the interest of justice and equity.
6. Based upon these pleadings, the following issues are framed for trial of the suit framed on 30.8.2002 and additional issue framed on 1.9.2005 and on 13.11.2007:-
1. Whether the plaintiff proves that, late K. Nazir was agreed to sell the suit schedule property for valuable consideration of Rs.12,000/- and executed an agreement of sale document:2-3-1977 by receiving the entire sale consideration amount?
2. Whether the plaintiff proves that he was put in possession of the suit schedule property in part performance of the agreement?
3. Whether the plaintiff proves that, has been always ready and willing to perform his part of the contract?
4. Whether the plaintiff proves that defendant No.5 is in unauthorised occupation of the suit schedule property?
15 O.S.4486 of 1998
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the suit is barred by limitation?
7. Is plaintiff entitle the relief of Specific Performance of contract?
8. Is plaintiff entitle the relief of possession?
9. To what order of decree?
ADDITIONAL ISSUE FRAMED ON 1.9.2005:
1. Whether the defendant No.6 proves that he is a bonafide purchaser of the schedule property for valuable consideration?
ADDITIONAL ISSUE FRAMED ON 13.11.2007
1. Whether the defendants 7 & 8 prove that the plaintiff has concocted the suit agreement as alleged in para No.4 of their Written Statement?
2. Whether the defendants 7 & 8 prove that the Court Fee paid on the plaint is insufficient?
3. Whether the defendant No.6 prove that he is a bonafide purchaser of the suit property without notice and for valuable consideration?
4. Whether the plaintiff prove that the alleged sale deed dtd:14-8-1998 in favour of the defendant No.6 is not binding on him?
16 O.S.4486 of 1998
7. In order to prove their respective cases, the parties to the suit have entered trial, wherein plaintiff himself is examined as PW.1 and got marked Ex.p.1 to P.17 and also examined two witnesses as P.W.2 and 3, who was subjected to be attesting witnesses for Ex.P.2, suit agreement of sale and with this evidence, plaintiff evidence is taken as closed. 2nd defendant is examined as D.W.1 and defendant No.6 is examined as D.W.2 and Ex.D.1 to Ex.D.6 are came to be marked. With this evidence, defendants side evidence is closed. Thereafter, suit is posted for arguments.
8. The learned counsel appearing for the plaintiff filed his written arguments in this case and also relied upon the following decision, which is submitted in the above suit along with memo of citation on 18.8.2015.
1.AIR 2007(NOC ) 1435(RAJ) Smt. Kalpana Royt and others Vs New India Assurance Company Ltd., and others)
2.AIR 2006 MAD 260(K.Balaramanand others Vs. Pattammal and others)
3.AIR 2004 KAR 31(Mallappa Vs. Srinivasa Rao and others)
4. AIR 2005 MAD 216(S.Balan and another Vs. Srinivasalu and others) On the other hand the learned counsel for the defendants submitted their arguments and counsel for defendant No.6 relied upon one decision in support of his 17 O.S.4486 of 1998 arguments along with memo of citations filed in the suit on 9.12.2015 after hearing the arguments of both sides and after receiving written arguments filed by the plaintiff's counsel, the suit is posted for judgment.
AIR 1998 SC page 2028 Jagannath Vs.
Jagadish Rai and others)
9. On appreciation of the pleadings filed by both the parties and on appreciation of evidence both oral and documentary evidence placed on record that of P.W.1 to 3 and that of D.W.1 and 2 and documents marked for the plaintiff from Ex.P.1 to P.17 and the documents of defendant No.6marked as per Ex.D. 1 to Ex.D.6 and considering the written arguments contention and considering the citations of plaintiff as well as defendant No.6 and considering the oral arguments of defendant No. 1 to 4, 7 and 8, I answer the above issues are as follows:-
Issue No.1 to 4: In the negative Issue No.5: Does not arise for consideration in view of f addition of defendant No.7 and 8 Issue No.6: In affirmative;
Issue No.7 & 8: In negative Additional. Issue In affirmative; No.1:
Additional. Issue In affirmative; No.1 framed on 18 O.S.4486 of 1998 13.11.2007:
Additional issue In negative No.2 framed on 13.11.2007:
Additional Issue Deleted in view of framing of additional No.3 framed on Issue No.1 on 1.9.2005 13.11.2007:
Additional Issue In negative;
No.4 framed on 13.11.2007:
Issue No.9: The suit of the plaintiff deserves to be dismissed for the following reasons:
REASONS
9. Issue No.1 to 4 and Additional Issue No.1 framed on 13.11.2007: The plaintiff herein has filed this suit for specific performance of contract initially against defendant No.1 to 5 only alleging that defendant No.1 to 4 are the legal heirs of late K.Nazeer , who died in the year 1979 and it is the case of the plaintiff that that during life time of husband of defendant No.1 and 3, i.e., K.Nazeer had executed sale agreement in favour of plaintiff agreeing to sell the suit schedule property on 2.3.1977 for sale consideration amount of Rs.12,000/-, wherein deceased K.Nazeer has already received entire sale consideration amount of Rs.12,000/-
from the plaintiff and agreed to convey the registered sale deed in favour of plaintiff as and when demanded by the p. But the executant of sale agreement namely K.Nazeer in the year 1979 and as such, he could not execute sale deed and it is the case of the plaintiff that deceased K.Nazeer had put the plaintiff in possession of schedule property under part 19 O.S.4486 of 1998 performance of contract and as such, plaintiff has claimed possession in respect of suit schedule property and property mentioned in the alleged agreement of sale under Sec. 53 of T.P.Act and it is further pleaded by him that after he put in possession of the suit schedule property, he was occupying the said property and also constructed the ACC sheet shed in the suit schedule property by spending amount of Rs.15,000/- and recited therein for a period of 5 years and thereafter, he pleased out the said property in favour of one K.N.Jagannath on rental basis as the said tenant was paying rent of Rs.150/- per month and the said tenant occupied the premises from the year 1996 and thereafter deceased K.Nazeer along with his family had obtained the premises on lease from the plaintiff agreeing to pay rental of Rs.250/- per month and as such, plaintiff relying upon alleged sale agreement dated 2.3.1977 said to have been executed by late K.Nazeer in respect of suit schedule property one described in the plaint schedule has filed this suit for schedule property against LRs of deceased K.Nazeer and also impleaded defendant No.5, who is stated to be unauthorized occupant in respect of schedule property and defendant No.6 impleaded himself in the suit as he has purchased the schedule property from defendant No.1 to 4 and defendant No.7 and 8 under sale deed dated 14.8.1998. Hence, plaintiff by issuance of legal notice dated 16.5.1998 to the defendant No.1 to 5 has filed the suit for specific performance of contract.
20 O.S.4486 of 1998
10. Defendant No.1 to 5, 7 and 8 have resisted the suit as they are the LRs of deceased K.Nazeer and defendant No.6 being subsequent purchaser claiming to be bonafide purchaser of schedule property under agreement of sale dated 29.11.1997 executed by defendant No.1 to 4 and defendant No.7 and 8 and subsequently defendant No.1 to 4, 7 and 8 have executed registered sale deed dated 14.8.1998. Hence, defendant No.6 resisted the suit contending that he is bonafide purchaser of suit schedule property for valuable consideration without having knowledge of alleged agreement of sale dated 2.3.1977. Hence, defendant No.7 contested the suit by this defense.
11. Hence, the plaintiff in order to prove his case entered the witness box and deposed by filing his affidavit evidence filed under Order 18 Rule 4 of CPC and P.W.1 also further examined in order to get marked documents relied by him, wherein in the evidence of P.W.1, documents Ex.P.1 to P.17 are came to be marked and on perusal of evidence given by P.W.1, wherein he got marked the documents and also deposed in his evidence in the form of affidavit by reiterating the facts as pleaded in the plaint averments and P.W.1 relying upon his evidence coupled with Ex.P.1 to P.17, pray for decreeing the suit as prayed by grant of specific performance relief and P.W.1 also stated that he was and is ready and willing to perform his part of contract and hence, 21 O.S.4486 of 1998 P.W.1 has prayed for specific performance decree as against LRs of deceased K.Nazeer and also prayed for declaration relief in respect of sale deed held by defendant No.6 dated 14.8.1998 is null and void and not binding upon him and directing the defendants to execute sale deed in respect of schedule property.
12. The learned counsel appearing for defendants cross examined P.W.1, wherein he admits that presently, he is residing in house No.500/2, 2nd Main Road, Cauvery Nagar, Bengaluru and he is doing business in Auto consultancy i.e., he is purchasing old auto rickshaws and welling them and doing this business of Auto consultancy since 1970 and P.W.1 admits that he has got two brothers and one younger brother, wherein his late brother K.Nazeer was doing business in sale of scrap of articles and he died in the year 1979 and P.W.1 stated that himself and his brother K.Nazeer were residing separately along with their families and P.W.1 stated that his brother K.Nazeer had purchased the property bearing No.48, 1st Main Road, 1st Main Road, Parvathipuram, Bengaluru on 15.11.1995 and the said property measuring 30 X 48 ft., whereas P.W.1 stated that the property purchased by his brother measuring east-west 30 ft., and north-south 48 ft., and he further deposed that when his brother is purchased property in some portion in area was open site and he relied upon Ex.P.1 sale deed in respect of schedule property i.e., property No.48 and P.W.1 denied his 22 O.S.4486 of 1998 knowledge regarding measurement recited in Ex.P.1, east- west 43 ft., and north-south 32 ft.,, and P.W.1 admits that in Ex.P.1 recitals, there is house measuring 21 X 13 ft, another house measuring 29X 8 ft., and another house measuring 19 X 8 ft., and P.W.1 denied that there is only door existed to property No.48 and P.W.1 deposed that his brother late K.Nazeer had offered to sell the schedule property on 2.3.1977 and he told to him prior to 2-3 months earlier regarding sale of his property and late K.Nazeer himself has executed sale agreement expressing his intention to sell east- west 10 ft., and north-south 48 ft., and P.W.1 stated that after execution of sale agreement late K.Nazeer has signed the agreement of sale in his presence and at that time, attesting witness namely Rehamathulla and Ameer Jon were present, who are the owners of adjoining properties and attesting witness were brought by late K.Nazeer and P.W.1 stated that at the time of execution of sale agreement, his brother had handed over original sale deed Ex.P.1 and tax paid receipts marked at Ex.P.3 to P.6 and Ex.P.7 was also handed over by his brother and P.W.1 denied his knowledge that in Ex.P.2 recitals, it was written in the name of Vahab, son of Khaseem Sab and P.W.1 admits that he has not signed Ex.P.2, but attesting witnesses have signed Ex.P.2 suit agreement of sale and he denied his knowledge that he has obtained Ex.P.7 on 4.5.1998 and he admits in Ex.P.8 notice, the property number is shown as property No.88, Main Road, Parvathipuram, Bengaluru and P.W.1 denied his 23 O.S.4486 of 1998 knowledge that in the notice Ex.P.8, there is no mention of property measurements by showing east-west and north- south directions and he denied that he has not issued notice to defendants as per Ex.P.8 and he denied that Ex.P.8 notice was sent by one Vahab Khan, son of Kareem Khan and P.W.1 further stated that the person shown in Ex.P.2 is one Vahab son of Khaseem Sab and the person shown in the suit namely Vahab Khan son of Khareem Khan are two different persons and P.W.1 admits that he has got tax paid receipts in respect of schedule property and he admits that he has not produced the said receipts in the suit and P.W.1 stated that he requested his brother during his life time to execute sale deed in his favour. But P.W.1 do not spelled out the date and month when he asked his brother and also not produced any documents in that regard and P.W.1 stated that after demise of his brother, he requested defendant No.1 to 4 and defendant No.7 and 8 demanding to execute sale deed and P.W.1 stated that after 3-4 months of death of his brother, he requested defendants(LRs of deceased K.Nazeer) for execution of sale deed and P.W.1 admits that he did not caused any notice to his late brother K.Nazeer and also to his wife and children seeking registration of sale deed and he denied after demise of K.Nazeer, the katha of schedule property has been changed in the name of defendant No.1 and 3 and P.W.1 admits that during life time of K.Nazeer, himself and his brother were in cordial terms with each other and P.W.1 admits that when his brother K.Nazeer died in 24 O.S.4486 of 1998 the year 1979, at that time, 2nd defendant was aged about 18 years, 4th defendant was aged about 16 years, and defendant No.7 and 8 are aged 8 years and 6 years respectively and P.W.1 stated that after demise of his brother, he did not went to the house of his brother and P.W.1 denied the suggestion that deceased K.Nazeer did not execute any sale agreement and he never offered to sell the schedule property and Ex.P.2 is false document created by him and P.W.1 denied that he has not paid consideration amount to his late brother and further P.W.1 denied that he has obtained original sale deed from the custody of LRs of deceased K.Nazeer on the pretext of change of katha in their names and has created Ex.P.2 after demise of K.Nazeer and P.W.1 denied the suggestion that Kalasipalyam police have filed forgery case against him alleging that he has indulged in creation of false documents and P.W.1 admits that he will examine the attesting witnesses namely Rehamathull and Ameerjon and P.W.1 denied that he has brought the said witnesses along with him in the suit proceedings.
13. Defendant No.5 cross examined P.W.1 on 23.06.2010, wherein he admits that his name is Wahab Khan and his father was also called as Kareem Khan and he do not know , who is Wahab Khan and P.W.1 admits that he do not possess any documents to show his father name is Kareem Khan as well as Khasim Khan and he denied that Ex.P.2 not related to him and P.W.1 stated measurement of 25 O.S.4486 of 1998 suit property measuring east-west 30 ft., and north-south 45 ft., and he has measured the schedule property and P.W.1 has given boundaries of schedule property towards east by road, west by private house, north by private house and south by road and other properties and he admits that there are three electrical meters in property No.48 and witness again voluntarily says that there are two electrical meters installed in the schedule property, wherein one electrical meter is pertaining to 3 shops and another is pertaining to house and property No.48 is in the same condition since the date of purchase by late K.Nazeer and P.W.1 admits that his brother K.Nazeer had prepared Ex.P.2, but he do not know from where his brother had prepared Ex.P.2 and P.W.1 stated that signatures were put to Ex.P.2 in the shop of his brother situated at Police road, Jali Mohalla, B.M.Rahamathulla and Ameer Jhon have put their signatures on Ex.P.2 and at the time of signing Ex.P.2, except himself (P.W.1) K.Nazeer and two attesting witnesses and except these persons, no one was present at the time of execution of Ex.P.2 and P.W.1 stated that K.Nazeer has signed Ex.P.2 and P.W.1 denied that Ex.P.2(a) is not the signature of late K.Nazeer Khan and he further denied that Ex.P.2 is created for the purpose of this case and P.W.1 also denied the attesting witnesses B.M.Rahemathull and Ameer Jhon are having shops near shop belongs to him and he also denied that attesting witnesses were his friends and they have got acquainted with late K.Nazeer Khan and they have created Ex.P.2 and P.W.1 26 O.S.4486 of 1998 further denied that the attesting witnesses are coming to court along with him. P.W.1 admits that during 1997, he was doing in auto consultancy business and he was earning about 5,000/- per month and he has no documents to show that he was earning Rs.5,000/- per month from this business and P.W.1 stated that he has paid Rs.12,000/- to K.Nazeer on 2.3.1977, but he has no documents to show that he had an amount of Rs.12,000/- on 2.3.1977 and P.W.1 admits that he is not paying income tax for the period of 1977 and even now also he is not an income-tax assessee and P.W.1 stated that late K.Nazeer delivered possession of property to him in the year 1977 and the measurement of the property measuring east-west 10 ft., and north-south 45 ft., and the said property is bounded east by shop and road, west by shop, north by vacant space. But he cannot say southern boundaries and P.W.1 denied that K.Nazeer did not gave any possession of the schedule at any point of time and P.W.1 admits that there was shop in the property measuring 10 X 45 ft., given to his possession and there is documentary evidence in his custody to prove his possession in respect of this property and P.W.1 stated that there is election identity card in respect of himself, wherein witness has shown the said identity card when he has given the evidence and P.W.1 denied that he is not in possession of schedule property at any point of time and P.W.1 admits that for the last 3 years, he is residing at Cauvery Nagar and earlier to that, he was residing in BTM layout for a period of 11 years and he has got 27 O.S.4486 of 1998 identity card pertaining to address of himself residing at BTM layout. P.W.1 stated that he has let out suit property to one Sri. Jagannath in the year 1986 and there is no lease agreement to that effect and he denied that he has let out property to Sri.Jagannath and the same was in possession of defendant No.1 to 4 during 1986. P.W.1 admits that his brother K.Nazeer was doing the scrap business and he denied that his brother was financially sound and P.W.1 admits that defendant No.6 is running tea shop and P.W.1 denied the suggestion that he was present at the time of the agreement of sale taken place between defendant No.6 and remaining defendants and he further denied that the defendant No.1 to 4, 7 and 8 have jointly sold the property in favour of 6th defendant for the purpose of marriage expenses of defendant No.7 and 8and P.W.1 denied his knowledge regarding sale transaction in favour of defendant No.6 and he admits that he has obtained encumbrance certificate in respect of suit property in the month of June 1998 and P.W.1 stated that 5th defendant told him in the year 1998 that he was in possession of suit property on lease basis and P.W.1 denied that he was aware of the sale transaction of schedule property between defendant No.1 to 4, 7 and 8 and defendant No.6 and P.W.1 admits that when he got issued legal notice as per Ex.P.8, he was in possession of agreement of sale as per Ex.P.2 and P.3 and P.W.1 denied that he has filed this false case against defendant No.6.
28 O.S.4486 of 1998
14. P.W.1 was recalled and further examined on 6.1.2014, wherein P.W.1 got marked tax paid receipts as per Ex.P.11 to P.16 and also office copy of notice dated 25.5.1998 along with postal cover, it is marked at Ex.P.17 and postal cover at Ex.P.17(a).
15. Counsel appearing for defendant No.6 further cross examined to P.W.1 in respect of the subsequent dates produced in the evidence of P.W.1, wherein P.W.1 stated that he has paid tax in respect of schedule property. Hence, he got custody of these tax paid receipts marked at Ex.P.11 to P.17and P.W.1 stated that he has paid tax to the schedule property till 1977 and thereafter for the further period after 1977, his brother was paying tax and he admits that when his brother K.Nazeer died in the year 1979 at that time, his children were minors, but he denied that 1st defendant is Pardhanishan lady and P.W.1 denied that he is assisting the family members of his mother after his demise and P.W.1 admits that on some occasions, he used to visit to his brother's house after his death and P.W.1 denied that he has committed theft of Ex.P.11 to P.17 from the house of his deceased brother and P.W.1 stated that he is residing by the side house of his brother's late K.Nazeer and P.W.1 stated that he has produced documents in this suit to prove his residential address.
29 O.S.4486 of 1998
16. P.W.2 is one of the attesting witness namely Amir Just and necessary, who deposed in this case through affidavit evidence, wherein he deposed that deceased K.Nazeer agreed to sale property in favour of plaintiff measuring north-south 48 ft., and east-west 10 ft., out of total measurement of property No.48 measuring 30 X 48 ft., and P.W.2 deposed regarding execution of sale agreement by late K.Nazeer and he identified Ex.P.2 and further identified his signature on it marked at Ex.P.2(b).
17. The counsel appearing for the defendant cross examined P.W.2, wherein he admits that he was running cycle shop, but since 1992, he stopped running the cycle shop and now for the past 12 years, he is residing in Gurrappana Palya and prior to that period, he was residing for some time at Magadi road and at Valmiki Nagara in the rented house and P.W.2 admits that he knew plaintiff prior to 1977 and plaintiff is his friend and P.W.2 do not know what is the avocation of the plaintiff and P.W.2 stated that the house of 1st defendant i.e., late K.Nazeer had kept cycle shop by the side of his shop in police road and he was running cycle shop and P.W.2 do not know, which property late K.Nazeer had agreed to convey in favour of plaintiff. But P.W.2 stated that K.Nazeer had agreed to convey open site measuring 10 X 48 ft., and plaintiff himself has called him to sign the agreement of sale and late K.Nazeer had brought the agreement of sale got written on Rs.5/- stamp paper and 30 O.S.4486 of 1998 himself and Ahamed signed Ex.P.2 as attesting witnesses, for which late K.Nazeer had also signed and P.W.2 stated that he is unable to read English and Kannada and contents of Ex.P.2 was made known to him by K.Nazeer and on that day K.Nazeer has paid Rs.12,000/- amount consisting of 100 and 50 currency notes. But he do not know how many currency notes are there and P.W. 2 admits that he did not witness the schedule property and as such, he cannot say the measurement by giving the east-west and north-south measurement of the schedule property and original documents were handed over to plaintiff by late K.Nazeer and thereafter, he did not enquired the plaintiff regarding execution of sale deed and he denied his knowledge about the death of K.Nazeer and he admits that he accompanied P.W.1 to court for about 6-7 times and he denied that deceased K.Nazeer did not execute any sale agreement as per Ex.P.2 and Ex.P.2 is created document in collusion in order to harass the defendants.
18. P.W.3 is also another attesting witness for Ex.P.2 namely B,M.Rahamnutulla and this witness deposed regarding execution of Ex.P.2 by late K.Nazeer in favour of plaintiff and he identified Ex.P.2 and also identified his signature on it as per Ex.P.2© . P.W.3 deposed in respect of Ex.P.2.
31 O.S.4486 of 1998
19. The counsel for defendants cross examined to P.W.3, wherein P.W.3 admits that since the agreement of 26, he is running auto rickshaw and plaintiff is also auto rickshaw driver and plaintiff also doing business on rickshaw broker and plaintiffs interim application is also his friend since the date of he running auto rickshaw. P.W.3 admits that since 1980, he is residing at Siddapura. But he do not remember the cross and cross road etc., and he gives the measurement of the schedule property measuring 10 X 48 ft.,. But he do not acquainted with the direction and also measurement in respect of east-west and north-south direction and he denied his knowledge about when deceased K.Nazeer had purchased the schedule property and P.W.3 stated that he used to shift in the shop of K.Nazeer Khan, but he do not know about the sale negotiations held between deceased and plaintiff and P.W.3 stated that plaintiff has paid amount to K.Nazeer Khan of Rs.12,000/- consisting of denomination of notes of Rs.10/- 50/- and 100/- . But he did not counted the amount by counting currency notes and P.W.3 stated that he signed at the instigation of K.Nazeer Khan to Ex.P.2 as it was prepared and brought up by K.Nazeer Khan and P.W.3 admits that he do not know Kannada and English language reading and writing also and P.W.3 admits that late K.Nazeer had handed over certain documents to plaintiff, but he do not know the nature of documents given to the custody of plaintiff and P.W.3 stated that Ex.P.2 is not signed by the plaintiff. But rest of the three 32 O.S.4486 of 1998 persons have signed Ex.P.2 and after execution of sale agreement, sale deed was not executed as K.Nazeer had died within span of 2 years and P.W.3 stated that he has pad the court for this case for 6-7 times. But he do not know the filing of this case and P.W.3 denied the rest of the cross- examination directed to him.
20. Defendant No.2 is examined as D.W.1, who has given evidence through affidavit filed in lieu of examination- in-chief and on perusal of examination-in-chief of D.W.1, wherein he deposed that property bearing No.48 was purchased by his father late K.Nazeer on 15.11.1975 under registered sale deed and this measurement is measuring east- west 43 ft., and north-south 32 ft., and his father was in actual possession and enjoyment of the property as owner thereof and he died in the year 1979 leaving behind his two wives and children including himself and accordingly, after demise of his father, defendant No.1 to 4 and 7 and 8 have succeeded and they are in joint possession and as such, they are joint owners of schedule property and D.W.1 denied that 5th defendant is an unauthorized occupant of schedule property and D.W.1 in his chief examination affidavit denied Ex.P.2 and its execution by his father in favour of plaintiff and D.W.1 also denied that plaintiff was in possession of schedule property under Ex.P.2 and he was residing therein and constructed asbestos sheet roofed building over the schedule property by spending Rs.15,000/- and plaintiff was 33 O.S.4486 of 1998 residing from last 5 years in the schedule property from the date of execution of Ex.P.2 and in the year 1986, he let out the schedule property in favour of K.M.Jagannath on monthly rent of Rs.150/- and D.W.1 also denied that the alleged tenant K.Jagannath vacated the premises in the year 1989 and defendants have taken the premises on rental basis from the plaintiff on rental of Rs.250/- per month and defendants have paid rent to plaintiff up to 1995 and thereafter, defendants have stopped paying rents and defendants have not vacated the premises and D.W.1 denied that in the 2nd week of May 1998, they have vacated the premises in question without notice to the plaintiff and hence D.W.1 in his affidavit evidence denied the entire case constructed and pleaded by the plaintiff and on the contrary, D.W.1 stated that Ex.P.2 is created document relied by the plaintiff and D.W.1 stated that thy were shocked to receive the notice issued by the plaintiff dated 15.5.1998, wherein plaintiff has forwarded his unholy claim and they have got issued suitable reply to the notice issued by the plaintiff and D.W.1 stated that they have sold the property as per sale agreement dated 29.11.1975 in favour of defendant No.6 and he is now in physical possession and enjoyment of schedule property as absolute owner thereof and also defendant No.6 is bonafide purchaser without notice of Ex.P.2 for valuable sale consideration amount. Hence, D.W.1 by his rebuttal evidence pray for dismissal of the suit.
34 O.S.4486 of 1998
21. The counsel for plaintiff cross examined to D.W.1, wherein he admits that he is the eldest son of his father and he was aged 20years when his father had died and he admits that his father had got two wives and he is the son of 1st wife and how he being auto driver business and himself and his other brothers are residing separately and after sale of schedule property, they are residing separately and D.W.1 do not know regarding purchase of this property by his father and also he do not know the vendors name of schedule property. The schedule property consisting of one hall, kitchen room, and bathroom when his father had purchased and he admits that his father was having three brothers and when this property was sold, it consisting of 3 shops. But D.W.1 denied that there was open site lying behind the shops in the schedule property and D.W.1 denied regarding execution of Ex.P.2 by his late father K.Nazeer in favour of plaintiff in the presence of attesting witnesses. Hence, D.W.1 denied the cross-examination regarding execution of Ex.P.2 and also denied that plaintiff by spending amount of Rs.15,000/- had built house and D.W.1 admits that plaintiff is related to him as his uncle and he admits that the driving license of plaintiff confronted the witness, it is marked at Ex.P.10 and D.W.1 denied that plaintiff was residing in schedule property for 5 years and he also denied that it was leased by the plaintiff in favour of Jagannath for 5 years and D.W.1 also denied that after vacating the premises by Jagannath in the year 1989, himself and his mother obtained 35 O.S.4486 of 1998 the premises on rent for Rs.250/- per month and entered into the property and D.W.1 denied that they have paid rent to the plaintiff at the rate of Rs.250/- per month and D.W.1 admits that they have vacated the premises in the 2nd week of May 1998 and handed over to possession of one Sri.Zulfiqar Ali by vacating the premises and D.W.1 admits that they have not informed the plaintiff regarding sale of schedule property in favour of plaintiff and D.W.1 denied that after they vacated the premises, the plaintiff has caused notice through his counsel as per Ex.P.8 and D.W.1 denied the receipt of reply notice as per Ex.P.9. But he admits that his mother might have received the reply notice caused by defendant No.2 and D.W.1 admits that defendant No.6 is also called as "Babu" as he is running tea shop in Lalbagh road under the name and style of "Dilkush Tea House" and D.W.1 admits that he has not filed any police complaint against plaintiff regarding theft of Ex.P.1. But his mother might have filed complaint and D.W.1 denied that when the suit is came to be filed, there was no document executed in favour of defendant No.5 and 6 in respect of sale of house property and D.W.1 denied that he is deposing false evidence.
22. Defendant No.6 is examined in this case as D.W.2 , wherein defendant No.6 has given evidence through affidavit filed in lieu of examination-in-chief and on perusal of his chief examination he denied the entire case of the plaintiff and also denied specifically regarding execution of Ex.P.2 by 36 O.S.4486 of 1998 late K.Nazeer in favour of plaintiff and also D.W.2 denied the measurement of schedule property agreed to be conveyed in favour of plaintiff as per Ex.P.2. On the contrary, D.W.2 stated that the property purchased by late K.Nazeer was measuring east-west 43 ft. And north-south 32 ft., and hence, D.W.2 stated that question of late K.Nazeer conveying the property measuring north-south 48 ft., and east-west 10 ft., will not arise at all and D.W.2 stated that in the year 1977, the schedule property was fetching more value by 4 times of the alleged price as stated by the plaintiff and D.W.2 stated that plaintiff has not come to the court with clean hands and he has no right to poke his nose in respect of enjoyment of suit schedule property by these defendants and defendants No.1 to 4, who are in possession and owners of the property, wherein the katha of the property was standing in the name of defendant No.1 and 3 and they offered to sell the property as per the sale agreement in favour of defendant No.6and hence, defendant No.6 claims that he is the bonafide purchaser of schedule property without notice of Ex.P.2. Hence, D.W.2 stated that suit is not maintainable and suit is barred by law of limitation and suit is liable to be dismissed. D.W.2 further examined himself and got marked Ex.D.1 to Ex.D.6 and D.W.2 relying upon his evidence and coupled with Ex.D.1 to Ex.D.6 pray for dismissal of the suit.
23. The learned counsel for the plaintiff cross examined to D.W.2 on 13.8.2013, wherein D.W.2 admits that he came 37 O.S.4486 of 1998 to Bengaluru about 30 years ago and prior to that he was residing at Mysore and since beginning he is running tea stall business and he came in acquaintance with defendant No.1 to 4 and 7 and 8 as they were coming to his hotel. D.W.2 admits that he came to know that late K.Nazeer was the owner of suit schedule property through his sons and from his family members and also he came to know that K.Nazeer had purchased the schedule property from one Mohammed Shah and he has verified the documents of title pertaining to schedule property as produced by Aktar John and Makbool John and he has produced the documents of title in respect of schedule property in this suit and D.W.2 admits that accommodation available in the schedule property is consisting of 3 rooms and kitchen and he denied that there is residential building existed behind two shops and also there is open space lying behind the shop premises and he admits that residence portion behind the shop premises, wherein K.Nazeer and his family was residing therein and he denied that there exist open site behind one shop premises measuring 10 ft., X48 ft., and deceased K.Nazeer had entered into contract to sell the open space as per Ex.P.2 in favour of plaintiff on 2.3.1977and as such, D.W.2 denied the execution of Ex.P.2 by late K.Nazeer in favour of plaintiff and also he further denied that plaintiff has built ACC roofed building in the open space by spending an amount of Rs.15,000/- and D.W.2 denied that plaintiff occupied the premises for 5 years and later on it was leased 38 O.S.4486 of 1998 to a tenant and after he vacated the premises in the year 1989, defendants i.e., LRs of K.Nazeer are residing therein as tenants and hence, D.W.2 denied the cross-examination directed in respect of Ex.P.2 and D.W.2 admits that he is running tea stall in the name and style as "Dilkush tea stall". The said business is running prosperously and D.W.2 denied that he was called by name "Babu" and D.W.2 stated that he was not received any legal notice issued by the plaintiff and he has not replied the notice and he denied that as on the date of filing of the suit, there was no transaction came to be registered in respect of suit schedule property. But D.W.2 stated that he has produced sale deed to show that there was sale transaction held as on the date of suit. Hence from perusal of entire cross-examination directed to D.W.2, wherein D.W.2 has not given a worthy admissions in his cross-examination.
24. After scrutiny of oral evidence placed on record consisting of P.W.1 to 3 and that of D.W.1 and 2, wherein plaintiff has filed this suit relying upon Ex.P.2, wherein plaintiff has filed this suit after abnormal and inordinate delay of 21 years from the date of execution of leased sale agreement dated2.3.1977and plaintiff has not issued demand notice to defendant no.7 and 8, who are the daughters of deceased K.Nazeer. The plaintiff relied upon Ex.P.2 and produced Ex.P.2 and also examined P.W.2 and 3 stated to be attesting witnesses. But on perusal of cross-examination of 39 O.S.4486 of 1998 P.W.2 and 3, wherein they are friends of plaintiff and though they have admitted their signatures on Ex.P.2. But plaintiff himself is not signatory to Ex.P.2 though P.W.1 stated that his late brother K.Nazeer had executed Ex.P.2 in his presence only on 2.3.1977. But P.W.1 has not satisfactorily explained in his evidence as to why he is not signatory to the documents in question i.e., agreement of sale dated 2.3.1977. On the contrary, it is admitted fact that plaintiff and late K.Nazeer are full brothers, wherein deceased K.Nazeer had purchased this schedule property bearing property No.48 measuring 32 X 43 ft., under Ex.P.1 under sale deed dated 19.7.1975 and K.Nazeer died in the year 1979, wherein plaintiff did not demanded his brother during his life time to execute sale deed in response to suit agreement Ex.P.2, wherein plaintiff had kept quite without issuance of notice in writing to his brother K.Nazeer from 2.3.1977 till he died in the year 1979 and for two years, plaintiff has not demanded his brother to execute sale deed though plaintiff alleged to have paid entire sale consideration amount of Rs.12,000/- alleged to have been agreed as sale consideration amount. On the contrary, as admitted that P.W.1 himself, wherein there were three shop premises constructed over property No.48 and defendants, who are the LRs of deceased K.Nazeer have denied the identity of schedule property, wherein the property purchased by late K.Nazeer under sale deed Ex.P.1, one measuring 32 X 43 ft., and as such, considering the measurement as recited in Ex.P.2, wherein it is mg10 X 48 40 O.S.4486 of 1998 ft.,. But the property bearing No.48 itself held by the vendor of late K.Nazeer was measuring 32 X 43 ft., Hence, the measurement one cited in agreement Ex.P.2 itself is appears to be suspicious and considering the cross-examination of P.W.1 and considering the evidence of D.W.2, wherein there are three shop premises, wherein P.W.1 admits the measurement suggested to him in his cross-examination regarding shop premises and as such, there was no open space available existed between the shops in property No.48 measuring 10 X 48 ft.,. Hence, Ex.P.2, which has seen the light of the day after lapse of more than 21 years as relied by the plaintiff, wherein this documents appears to be came to the light after demise of the husband of defendant No.1 and 3 and father of defendant No.2, 4, 7 and 8 and this is a fact that late K.Nazeer was running cycle shop by the side of shop of P.W.2 and 3. He died in the year 1979 leaving behind defendant No.1 to 4, 7 and 8 as LRs and D.W.1 stated that after demise of his father, plaintiff is the elder in the family looking after the affairs of the family and as such, P.W.1 came in custody of the sale deed Ex.P.1 registered in the name of his brother K.Nazeer. Even tax paid receipts, which are marked from Ex.P.3 to P.6 and also subsequently from Ex.P.11 to P.14, wherein the custody of Ex.P.1, P.3 to P.6 and Ex.P.11 to P.14 are not material to hold that deceased K.Nazeer had handed over these documents in favour of plaintiff on the day of execution of Ex.P.2. On the contrary, if really plaintiff had paid entire sale consideration amount to 41 O.S.4486 of 1998 his deceased brother K.Nazeer what prevented the premises to get execute the sale deed during life time of late K.Nazeer, who died in the year 1979 after gap of two years from the alleged agreement of sale and it is also one of the suspicious circumstances , wherein though plaintiff stated his presence when Ex.P.2 was executed . But P.W.1 not deposed with explanation why he has not signed the agreement Ex.P.2 in the presence of witnesses. Hence, in a suit for specific performance, the main concept to constitute valid agreement, wherein there should be offer and acceptance between the parties, wherein parties to the contract must sign the agreement of sale. But in this particular case, there is no signature appearing on Ex.P.2 that of plaintiff and also plaintiff has failed to prove his possession under Sec. 53A of T.P.Act regarding his possession and also plaintiff not examined the alleged tenant K.Jagannath, though he has produced Ex.P.3 alleged agreement of lease, wherein on perusal of Ex.P.3, it is typed on paper and there is no schedule property as description mentioned in this lease agreement and as such, Ex.P.3 also appears to be created and plaintiff has not examined this tenant and also attesting witness for the lease agreement Ex.P.3 and on the contrary, the property shown in Ex.P.2 itself is not identifiable within the measurement available in property No.48 and plaintiff also not established that after demise of K.Nazeer in the year 1979, the defendants 1 to 4, 7 and 8 are residing as tenants by paying rent of Rs.250/- per month and there is no scrap 42 O.S.4486 of 1998 of paper produced by the plaintiff to show that defendant No.1 to 4, 7 and 8 are occupying the premises as lessee under him from 1989 till they vacated the premises in the year 1998 and on perusal of Ex.P.8, the legal notice caused by the plaintiff to defendant No.1 to 5, wherein this legal notice is a demand notice issued by the plaintiff on 16.5.1998, wherein in this notice, it is stated that the defendant No.1 to 4 and 7 and 8 are residing in the schedule property on a monthly rent of Rs.300/- and plaintiff has claimed possession of schedule property under performance under Ex.P.2 from 2.3.1977 itself, but there is no iota of evidence to show that plaintiff was put in possession of schedule property under performance under 53 of T.P.Act and even plaintiff has not produced any scrap of paper to show that he has constructed ACC sheet roofed house in area measuring 10ft., X 48 ft., after he entered into contract as per Ex.P.2. On the contrary, the premises purchased by K.Nazeer under Ex.P.1 was already consisting of schedule premises and there was already constructed structure, which was occupied by K.Nazeer and after his demise, defendants 1 to 4 , 7 and 8 are residing therein. Hence, considering the property shown in Ex.P.2, wherein plaintiff failed to prove that there exist open site lying behind the shop premises in property No.48 as mentioned in Ex.P.2 within the said boundaries measuring open space 10 ft., X 48 ft., and on the contrary, Ex.P.2 appears to be suspicious agreement of sale, wherein this document has seen the light of the day, wherein 43 O.S.4486 of 1998 plaintiff has filed this suit in the year 1988 against defendant No.1 to 5 and plaintiff has not verified the document i.e., sale deed dated 14.8.1998 registered in the name of defendant No.6 by verifying the encumbrance certificate maintained by the Sub Registrar office and hence, though plaintiff has examined himself and also examined P.W.2 and 3, but their evidence is not trustworthy to accept Ex.P.2 as genuine agreement of sale. On the contrary, for Ex.P.2, plaintiff is not signatory and as such, there is no valid contract entered into between plaintiff and deceased K.Nazeer. Even measurements as compared to Ex.P.1 and P.2 are quite contrary and property open space shown in Ex.P.2 is not available. Hence, plaintiff failed to prove Ex.P.2 was the agreement of sale executed by his late brother K.Nazeer and even plaintiff has not produced any documents to show that he was having Rs.12,000/- amount paid on 2.3.1977 and hence, I hold that Ex.P.2 is a suspicious document, wherein plaintiff has not issued any notice during life time of K.Nazeer and after death of K.Nazeer, the plaintiff has filed this suit based upon Ex.P.2 taking advantage of the custody of original document Ex.P.1, Ex.P.3 to P.6, Ex.,P.11 to P.14 and hence, I hold that plaintiff has failed to prove Issue No.1 and also plaintiff failed to prove his possession as stated in the pleadings under Sec. 53A of T.P.Act and plaintiff also failed to prove his readiness and willingness, wherein plaintiff has not issued legal notice to defendant No.7 and 8, who are LRs of deceased K.Nazeer and plaintiff has issued Ex.P.8 after 44 O.S.4486 of 1998 lapse of more than 21 years only to defendant No.1 to 5 and on the contrary, considering the oral and documentary evidence placed on record, wherein Ex.P.2 appears to be created and suspicious document relied by the plaintiff after demise of his brother and plaintiff also failed to prove identity of suit schedule property one existed in property No.48 purchased by K.Nazeer. Hence, plaintiff utterly failed to prove Issue No.1 to 4 and on the contrary, defendant No.1 to 4 and defendant No.7 and 8 have proved that Ex.P.2 is a concocted sale agreement relied by the plaintiff. After considering the pleadings filed by the plaintiff and evidence placed on record and also considering Ex.P.8 legal notice, which is the base for the suit, wherein there is much variance between pleadings and proof and suit is hit by order 6 Rule 4 of C.P.C. Accordingly, Issue No.1 to 4 are answered in negative against plaintiff and Additional Issue No.1 is answered in affirmative.
25. Issue No.5: The defendants have taken up contention in written statement regarding suit suffers from non-joinder of necessary parties, wherein plaintiff has filed this suit against defendant No.1 to 4 claiming to be the LRs of the deceased K.Nazeer and defendant No.5 stated to be unauthorized occupant residing in the schedule property and it is the case of the defendant that late K.Nazeer had left two sons and two daughters and he got two wives, who are defendant No.1 and 3 and subsequently the plaintiff has filed 45 O.S.4486 of 1998 interim application filed in I.A.No.6 seeking to implead the daughters of deceased K.Nazeer and I.A.No.6 filed by the plaintiff came to be allowed on 14.2.2007 and plaintiff has impleaded the daughters of K.Nazeer, who are the LRs of deceased as necessary and proper parties in this case and hence, in view of I.A.No.6 filed by the plaintiff and in view of addition of defendant nO.7 and 8 during pendency of the suit, wherein this plea taken by the defendant is now not tenable and as such, the contention of the defendants at this stage is not acceptable and on the contrary, plaintiff has impleaded all the LRs of the deceased K.Nazeer including subsequent purchaser i.e., defendant No.6, wherein defendant No.5 and 6 are one and the same persons and as such, defendants have failed to prove Issue No.5.
26. Issue No.6: The defendants have taken up specific contention in their written statement that suit is barred by limitation and in this regard, counsel for the plaintiff relying upon Ex.P.8 contended that plaintiff has demanded the defendants, who are the LRs of late K.Nazeer. But defendants have replied the notice as per Ex.P.17 dated 25.5.1998 and also defendants have alienated the schedule property in favour of defendant No.6. Hence, from the date of refusal as per Ex.P.17, the suit filed by the plaintiff, which falls within the ambit of Art.54(ii) of Limitation Act and suit filed by the plaintiff is well within the period of limitation. But on the contrary, counsel for defendants in their arguments 46 O.S.4486 of 1998 contended that as per alleged agreement of sale Ex.P.2, wherein there is no time fixed under the agreement and according to the plaintiff, he has paid entire sale consideration amount to deceased brother and also he has obtained documents old title deeds from the deceased. But the said agreement was not came to be pursued by the plaintiff during life time of K.Nazeer, wherein plaintiff ought to have reissued legal notice within span of 2 years during life time of K.Nazeer, who died in the year 1979 and plaintiff ought to have filed this suit within 3 years, which is reasonable time to seek specific performance relief. Even though no specific time or date is fixed in the contract agreement. Hence, this suit is filed after lapse of more than 20-21 years from the date of alleged agreement of sale and there is no demand notice issued to defendant No.7 and 8 and Ex.P.2 is barred by limitation after considering the rival arguments and on considering Ex.P.2, wherein plaintiff has issued legal notice on 16.5.1998 after lapse of more than 21 years from the date of alleged agreement of sale and recitals of Ex.P.2 shows that deceased had agreed to execute sale deed as and when demanded by the plaintiff. But plaintiff has not demanded to execute sale deed through his brother during his life time from 2.3.1977 till his death in the year 1979 and even plaintiff has not given specific date of death of his own brother K.Nazeer. Hence, plaintiff ought to have filed this suit within reasonable time and also he ought to have pursued the relief relying upon Ex.P.2 within reasonable 47 O.S.4486 of 1998 time, wherein considering Ex.P.2 recitals, wherein the plaintiff ought to have enforced the alleged agreement of sale within 3 years from the date of alleged execution, wherein plaintiff ought to have filed the suit within 3 years of time, but whereas plaintiff has brought this suit against LRs of deceased on 19.6.1998. Hence, the suit filed by the plaintiff beyond 3 years of limitation period and present facts of the case attracts Art.54(i) and as such, I hold that suit filed by the plaintiff after inordinate delay and also barred by limitation and as such, Issue No.6 is answered in affirmative.
27. Additional Issue No.1 framed on 1.9.2005: This issue is framed in view of the written statement filed by defendant No.6, wherein defendant No.6 got impleaded himself in this suit, wherein defendant No.6 has filed application during pendency of the suit on 2.7.2003 by filing application under Order 1 Rule 10(2) of CPC and plaintiff counsel submitted no objections to I.A.No.2 filed by 3rd party applicant i.e., defendant No.6 and application filed under Order 1 Rule 10(2) came to be allowed on 2.7.2003 and defendant No.6 is impleaded as necessary party, who is claiming to be the bonafide purchaser of the suit schedule property under sale deed dated 14.8.1998 and D.W.2 is examined in this case and relied upon Ex.D.1 to Ex.D.6marked through his evidence, wherein D.W.2 has produced Ex.D.5 certified copy of sale deed dated 14.8.1998, wherein D.W.2 has purchased this property No.48 under sale 48 O.S.4486 of 1998 deed executed by defendant No.1 to 4 and 7 and 8 and also D.W.1 relied upon agreement of sale dated 29.11.1997 executed by LRs of deceased K.Nazeer Khan and this court while discussing Issue No.1 to 4 and Additional Issue No.1 has reached to the conclusion that Ex.P.2 is suspicious and created document relied by the plaintiff and hence, considering the evidence of D.W.2, wherein he has purchased the schedule property from LRs of deceased K.Nazeer under sale deed dated 14.8.1998 and as such, the evidence of D.W.2 placed on record coupled with his defense filed in this case deserves to be accepted, wherein defendant No.6 being purchaser of schedule property as per Ex.D.6, wherein he has deposed that he has lost original sale deed and hence, D.W.2 has produced certified copy of sale deed and though plaintiff cross examined D.W.2, but having worth and admissions are extracted through D.W.2 to discard his evidence and on the contrary, defendant No.6, who is purchaser of schedule property from the LR of deceased K.Nazeer under sale deed and as such, I hold that defendant No.6, who was in possession of schedule property and he has also purchased the property under sale deed dated 14.8.1998 through LRs of deceased K.Nazeer and hence, the defense set up by defendant No.6 had purchased the schedule property as bonafide purchaser for valuable consideration and as such, the contention of defendant No.6 deserves to be protected under Sec. 19(b) of Specific Relief Act and as such, I hold that defendant No.6 has proved Additional Issue 49 O.S.4486 of 1998 No.1 framed on 1.9.2005. Accordingly, it is answered in affirmative.
28. Additional Issue No.2 framed on 13.11.2007:
Defendant No.7 and 8 have contended that the court fee paid on the plaint is insufficient and defendants failed to prove their contention and on the contrary, the plaintiff relied upon Ex.P.2 and has valued the suit and has paid court fee by paying proper court fee as per valuation slip filed in this case, wherein plaintiff has paid court fee on the consideration amount shown in Ex.P.2 in the valuation slip filed on 19.6.1998. Hence, Additional Issue No.2 is answered in negative.
29. Additional Issue No.3 framed on 13.11.2007:
Deleted in view of framing of additional Issue No.1 on 1.9.2005.
30. Additional Issue No.4 framed on 13.11.2007:-
The plaintiff has got amended the pleadings by filing interim application in respect of declaration relief regarding sale deed held by defendant No.6, wherein plaint relief was amended in respect of sale deed dated 14.8.1998 has not binding upon plaintiff, but in view of reasoning and findings given on Issue No.1 to 4 and Additional Issue No.1, wherein this court has reached to the conclusion that Ex.P.2 the suit agreement is appears to be suspicious document and created 50 O.S.4486 of 1998 one relied in this case and as such, the question of declaration relief in respect of sale deed held by defendant No.6 does not arise and on the contrary, defendant No.6 already proved his contention that he is bonafide purchaser of schedule property from LRs of deceased K.Nazeer under sale deed dated 14.8.1998. Hence, this Issue is answered in negative against plaintiffs.
31. Issue No.7 and 8: The has sought for the relief of specific performance of contract and for declaration in respect of sale deed held by defendant No.6 and also for possession relief. But this court while considering Issue No.1 to 4 and Additional Issue No.1 has reached to the conclusion that Ex.P.2 relied by the plaintiff is suspicious document and also further held that this suit filed by the plaintiff after inordinate delay after lapse of more than 21 years against LRs of deceased K.Nazeer, wherein plaintiff has failed to prove Ex.P.2, against the LRs of deceased K.Nazeer. Hence, this court has rejected the case of the plaintiff as pleaded by him and hence, plaintiff is not entitled for the relief of specific performance of contract based upon suspicious agreement of sale Ex.P.2, wherein Ex.P.2 is not enforceable contract as plaintiff is not signatory to Ex.P.2 and hence, plaintiff is not entitled for the relief of specific performance sought for in this suit and also not entitled for other consequential reliefs prayed by him of possession of schedule property and also for declaration relief sought for in respect of sale deed held 51 O.S.4486 of 1998 by defendant No.6 dated 14.8.1998 and as such, Issue No.7 and 8 are answered in negative against plaintiff.
32. Issue No.9: In view of my findings submitted on Issue No.1 to 8 and Additional issues framed in this suit, wherein plaintiff has utterly failed to prove his case as pleaded in the plaint and also plaintiff failed to prove his contention that deceased K.Nazeer has executed sale agreement in his favour in respect of suit schedule property as per Ex.P.2. On the contrary, it is held that plaintiff failed to prove identity of schedule property as mentioned in Ex.P.2 and hence, suit of the plaintiff filed for the relief of specific performance based upon alleged agreement Ex.P.2 and for consequential reliefs deserves to be dismissed. However, in the facts and circumstances parties to bear their own costs. Hence, with these observations, I proceed to pass the following:-
OR D E R The suit filed by the plaintiff for the relief of specific performance of contract based upon Ex.P.2 and for other consequential reliefs prayed in the suit is hereby dismissed.
However, parties to bear their own costs.
52 O.S.4486 of 1998 Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 8th day of January, 2016.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri. Wahaad Khan P.W.2 Sri. Amir Jan P.W.3 Sri. B.M.Rahamatulla
List of documents exhibited for plaintiff:-
Ex.P.1 Original sale deed executed by
Sri. Syed Mohammad in favour of
Sri. K.Nazeer on 15.11.1975
Ex.P.2 Agreement of sale executed by
K.Nazeer in favour of plaintiff on
2.3.1977
Ex.P.3: Zerox copy of Rental agreement in
favour of Sri. Jagannath on
21.6.1986
53 O.S.4486 of 1998
Ex.P.4 to P.6: Tax paid receipts having paid in respect of suit schedule property Ex.P.7 Encumbrance certificate in respect of suit schedule property Ex.P.8: Legal notice sent by advocate for plaintiff to defendant on 16.5.1998 Ex.P.9 Reply notice by advocate for defendants on 25.5.1998 Ex.P.10 Motor Driving licence Ex.P. 11 to P.16 Tax paid receipts Ex.P.17: Office copy of notice dated 25.5.1998 along with postal cover List of witnesses examined for defendant:
DW.1 Sri. Afzal Pasha D>W.2 Sri.Zulfiqar Ali
List of documents exhibited for Defendant:-
Ex.D.1 Katha certificate
Ex.D.2: Special notice
Ex.D.3 and 4: Tax paid receipts
Ex.D. 5: Certified copy of sale deed
Ex.D.6: Tax paid receipt
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
54 O.S.4486 of 1998