Karnataka High Court
T Uma Devi W/O S V Vishwanath vs Shri R Venkatesh on 3 January, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF JANUARY 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
R.F.A. NO. 1593/2010 C/W H.R.R.P.149/2011
IN R.F.A. NO. 1593/2010
BETWEEN:
T.UMA DEVI, W/O S.V.VISHWANATH,
AGED ABOUT 55 YEARS,
RESIDING AT A-9, RBI STAFF QUARTERS,
1ST MAIN ROAD, 9TH CROSS,
VIJAYANAGAR II STAGE,
BANGALORE - 560 040
... APPELLANT
(BY SRI R.RAJASHEKAR, ADV.,)
AND:
SHRI R.VENKATESH,
S/O LATE K.P.RATHNAM SETTY,
AGED ABOUT 53 YEARS,
PROPRIETOR OF M/S SANDEEP TEXTILES,
NO.6, 5TH CROSS,
OPP. GEETHANJALI THEATRE,
MALLESHWARAM,
BANGALORE - 560 003
... RESPONDENT
2
(BY M/S S & S ASSOCIATES, SHIVAKUMAR.U, ADV.,
FOR VASANTH NAIK, ADV.,)
RFA IS FILED U/S 96 OF THE ORDER XLI RULE 1 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
01.07.2010 PASSED IN O.S.NO.5030/2004 ON THE FILE OF
THE XI ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH 8),
DECREEING THE SUIT FOR SPECIFIC PERFORMANCE OF
CONTRACT.
IN H.R.R.P.149/2011
BETWEEN:
KUM.M.S.JAYANTHI,
D/O LATE SHANKARANARAYANA SETTY,
AGED ABOUT 48 YEARS,
RESIDING AT NO.259, SRIRAKSHA,
RBI LAYOUT, J.P.NAGAR 7TH PHASE,
BANGALORE - 560 078
... PETITONER
(BY SRI L.S.VENKATAKRISHNA, ADV.,)
AND:
UMA DEVI, W/O S.V.VISHWANATH,
AGED ABOUT 55 YEARS,
RESIDING AT A-9, RBI STAFF QUARTERS,
1ST MAIN ROAD, 9TH CROSS,
VIJAYANAGAR II STAGE,
BANGALORE - 560 040
... RESPONDENT
(BY SRI R.RAJASHEKAR, ADV.,)
3
THIS HRRP FILED U/SEC 46(1) KARNATAKA RENT ACT
AGAINST THE ORDER DATED 10.08.2011 PASSED IN
EX.CASE NO.293/2011 ON THE FILE OF THE CHIEF JUDGE,
COURT OF SMALL CAUSES, BANGALORE, ISSUING THE
DELIVERY WARRANT AGAINST THE JUDGMENT-DEBTOR
THEREIN FOR DELIVERY OF POSSESSION OF SCHEDULE
PREMISES IN FAVOUR OF THE DECREE HOLDER THEREIN.
The appeal and petition coming on for final disposal
this day, the court delivered the following
JUDGMENT
The appellant in R.F.A.1593/10 was the defendant in O.S.5030/04 wherein R.Venkatesh (respondent in the appeal) sought a decree to enforce specific performance of an agreement of sale dated 24.1.2004 in respect of the property described in the schedule to the plaint.
2. H.R.R.P.149/11 arises from the order passed in Exn.P.293/11 wherein P.Umadevi sought to enforce order of eviction obtained by her in HRC 63/07 to evict M.S.Jayanthi from the premises which is the subject matter of dispute in the appeal, for her own use and occupation, invoking Section 27(2)(a), (p) and (q) of the Karnataka Rent Act, 1999, read with Section 31(1)(b) thereof. In the said 4 execution proceedings, Jayanthi resisted delivery warrant on more than one ground consequent to which serious contest ensued between the parties. The executing court declined to accept the objections and directed issuance of delivery warrant for her eviction which is impugned in execution.
3. As the subject matter of dispute is the same property and parties in one way or the other tried to set up right, title and interest therein, both the cases are clubbed to consider the common questions of law and fact canvassed by the learned counsel on both sides.
4. I had the benefit of hearing persuasive arguments advanced by Sri Vinodkumar and Sri Rajashekar and have perused records in supplementation thereto. It reveals:
a) R.Venkatesh-plaintiff in O.S.5030/04 sought a decree for specific performance on the plea that he had transacted with P.Umadevi to purchase the property described in the schedule for a sale consideration of Rs.12,40,000/- and paid Rs.1,00,000/- as advance on 5 24.1.2004. It was documented in an agreement and executed by the parties. The sale transaction had to be completed by he paying the balance sale consideration and Umadevi executing the deed within thirty days subject to compliance of other conditions which are detailed below:
i) He (plaintiff) had to pay Rs.2,00,000/-
to Keshav Murthy and take return of the cheque bearing no.003221 allegedly issued by Umadevi;
ii) He had to pay Rs.1,00,000/- to M.Srinivasa Murthy and take return of the cheque bearing no.020285 issued by Umadevi;
iii) He had to pay Rs.6,00,000/- to S.Sridhar through demand draft in respect of the suit filed by him against R.Usharani and take return of the cheque bearing no.194999; and
iv) He was required to pay Rs.2,25,000/-
to M.S.Jayanthi (tenant in occupation of the premises in question and judgment debtor in execution proceedings), which she had paid as security deposit and Rs.15,000/- towards electricity charges. It was agreed between the parties that on clearance of the amount in the manner referred to above, he would be 6 entitled to possession of the premises from M.S.Jayanthi and get the sale deed executed by Umadevi.
b) The plaintiff averred he had complied with all the terms of the contract by paying money to persons referred to above and had taken return of the cheques. He also claimed to have been put in possession of the property by Umadevi on 6.3.2004 and claimed he was still in possession. However, he added to say he was due Rs.2,10,000/- to be paid to Umadevi which amount she declined to receive.
c) It necessitated issuance of statutory notice on 9.3.2004 calling upon her to fulfill the obligation under the contract which she received on 25.3.2004, but failed to comply. She sent an untenable reply necessitating filing of the suit for specific performance.
d) Umadevi entered contest denying all the allegations in the plaint so far as it relates to the alleged instructions from her to pay money to Keshav Murthy, 7 Srinivas Murthy and Sridhar. Her specific plea was, she was not a party to any agreement of sale dated 24.1.2004 as alleged, nor did she receive any amount from R.Venkatesh. She described all those persons, viz., Keshav Murthy, Srinivas Murthy and Sridhar to be strangers and disclaimed any liability to pay them any amount, much less having issued cheques. So far as M.S.Jayanthi is concerned, she admitted she was lessee in respect of the premises in question and declared she had sought an order of eviction against her. She denied she had put R.Venkatesh in possession of the premises in question. In past performance of alleged agreement to sell. Her additional plea was, she has constructed the building raising loan from her employer, namely, Reserve Bank of India and as on 30.6.2004 she was due Rs.9,06,000/-.
e) So far as Sridhar and Jayanthi are concerned, she described them as family friends/relatives who had parted ways. She alleged they had filed a false report against the plaintiff and colleague-Usharani who was her co-employee 8 in the bank. According to her, as colleagues they were selling and purchasing clothes from the plaintiff's shop (R.Venkatesh) and Umadevi was made to sign blank cheques towards the purchase. It is further averred that the blank cheques were misused by the plaintiff in connivance with Sridhar, Jayanthi and others and it was fraudulent representation in the plaint. Therefore, her vehement contention is, plaintiff along with Sridhar, Jayanthi had played fraud on her and Usharani by creating forged documents with sinister design to enrich themselves without basis.
f) Based on the material propositions in the pleadings of the parties, learned trial judge has framed in all 7 issues as under:
'1. Whether the plaintiff proves that the defendant was agreed to sell the suit schedule property for Rs.14,50,000/- and executed an agreement of sale dated 24.01.2004 by receiving an advance amount of Rs.1-00 lakh?
2. Whether the plaintiffs prove that he has paid the further advance amount as detailed in para- 7 of the plaint?9
3. Whether the plaintiff proves that he was put in possession of the schedule property in part performance of the contract?
4. whether the plaintiff proves that he has been always ready and willing to perform his part of the contract?
5. Whether the defendant proves that the plaintiff has played fraud in connivance with his friends S.Sridhar and Smt.M.S.Jayanthi and misused two bank cheques given in connection with hand loan and got executyed the agreement of sale?
6. Whether the plaintiff is entitled the relief of specific performance of the contract?
7. Whether the plaintiff is entitled for refund of Rs.12,40,000/- along with interest at the rate of 24% p.a. in the alternative/
8. To what order of decree?' and placed the burden of proof on both sides as could be seen from the nature of issues.
g) In discharge of the burden of proof, parties led evidence. Plaintiff R.Venkatesh tendered evidence as PW1 and a witness, M.K.Satyanarayana and placed reliance on 11 documents which include the alleged agreement of sale (Ex.P2) and co-related documents like Encumbrance Certificate (Ex.P1), three cheques (Exs.P7 to P9) and 10 receipts (Exs.P3 to P6). Umadevi on her part was examined as DW1 and she relied on 18 documents.
h) The learned trial judge analyzing the evidence, opined plaintiff's evidence outweighs her evidence, and decreed the suit directing her to receive Rs.2,10,000/- from the plaintiff and to execute the sale deed and transfer the property unto the plaintiff.
i) Assailing it, she is in appeal.
5. As regards Jayanthi is concerned, she is in H.R.R.P. assailing the order passed in execution proceedings rejecting her objection and ordering delivery warrant.
6. It could be seen from the proceedings in execution, while Umadevi sought to evict Jayanthi(petitioner of HRRP) her based on the compromise decree in HRC.63/07 dated 23.10.2007, Jayanthi denied such liability to vacate. Instead she filed an application under Section 167, C.P.C. to set aside the compromise decree passed in HRC.63/07 on the assertive contention the compromise memo was by 11 misrepresentation and she had not willingly, voluntarily and consciously consented to such decree. Thus the issue in limine before the executing court was: Whether the compromise decree binds Jayanthi and she is bound to obey it? As expected, Umadevi supported the compromise denying it was result of either fraud, coercion or undue influence. In view of such contentions, learned judge of the executing court permitted the parties to lead evidence. In the trial that ensued, both parties placed material in support of their respective contentions. But it could be seen the application was rejected by order dated 29.9.2008 and after dismissal of it, the decree holder filed execution proceedings to enforce the compromise decree.
7. To resist further proceedings in execution, Jayanthi brought in new facts and circumstances referring to the sale transaction between R.Venkatesh and Umadevi. In other words, having failed in her attempt to get the compromise decree set aside, she put up defence in execution proceedings that since R.Venkatesh has succeeded in 12 obtaining the decree for specific performance in his favour in O.S.5030/04, the execution was not maintainable. She referred to execution proceedings filed earlier by the decree holder which came to be dismissed, and contended the judgment and decree in O.S.5030/04 being the subject of appeal in R.F.A.1593/10 (one dealt with in this order), the right, title and interest of the decree holder was lost and she could not enforce the compromise decree against her.
8. From such contention, it is noticed Jayanthi banked on the decree passed in favour of R.Venkatesh to contend decree holder had lost her right to enforce the compromise decree and thus the execution petition must fail.
9. Learned trial judge having considered the defence and the stand of the decree holder, affirmatively held that the judgment debtor(Jayanthi) had failed to establish she had delivered vacant possession of the premises to R.Venkatesh in view of the agreement of sale, and therefore the execution must fail. In other words, learned judge opined the transaction between R.Venkatesh and Jayanthi 13 could not be taken notice of in view of the fact that no document was produced, nor there was any material to show she had delivered possession to him. Learned judge took note of the fact that the appeal was pending adjudication before this court and therefore stay was granted in respect of the judgment and decree. It is further held, Jayanthi has nothing to do with the agreement of sale dated 24.1.2004 and her locus itself was questioned.
10. The last and important circumstance noticed by the learned judge was, since Jayanthi had failed to establish compromise decree was not binding on her, and as judgment in favour of R.Venkatesh, was stayed in the appeal, learned Judge negated her objections. In these circumstances, learned trial judge enforced the compromise decree and directed issuance of delivery warrant.
11. Learned counsel, Sri Venkatkrishna for the judgment debtor in H.R.R.P.149/11 would contend, unless and until it is shown as on the date delivery warrant is issued, the decree holder has a subsisting right in the property in 14 question, the decree cannot be enforced as there will be severance of jural relationship of landlord and tenant between the parties, consequent to which the decree obtained under the Rent Act will not be enforceable. He would draw my attention to the fact that the judgment in question granting decree for specific performance is in force except for the fact that its execution was stayed. It was urged that at least till adjudication in R.F.A., the order passed in HRC.63/07 could not be enforceable.
12. In negation of these grounds, learned counsel for the decree holder-respondent would contend, the decree holder's title was not under shadow. The fact that R.Venkatesh himself had admitted to be transferee under the sale agreement establishes she enjoys the benefit of absolute title till undone in the manner known to law.
13. So far as the appeal is concerned, he would submit the contest interalia is between R.Venkatesh and Umadevi in which Jayanthi-tenant has no concern. At the most, R.Venkatesh would step into the shoes of the decree holder 15 and in this manner, the tenant cannot protect her possession.
14. So far as R.F.A. is concerned, the respondent/plaintiff has resisted it seriously on the ground he has spent several lakhs as indicated in the plaint and is entitled to set off the said amount towards the sale price. Conditions (i) to (iv) are highlighted to show that they were complied with and therefore, payment made by him to the creditors of the umadevi has to be construed as legal tender towards the sale price of the property in question. It is urged on his behalf, since he has made payment except Rs.2,10,000/- to them, he was entitled to seek enforcement of the agreement, and the transferor under the agreement had failed to show that it was unenforceable.
15. Sri Rajashekar on behalf of Umadevi assertively contended that Keshav Murthy, Srinivas Murthy and Sridhar were all strangers and under no circumstance Umadevi had instructed R.Venkatesh to make any payment to them. In fact, he would submit, payment if any made by R.Venkatesh 16 to them will be of no concern to her. So far as the agreement of sale dated 24.1.2004 is concerned, it is described as concocted, created for the purpose of this case.
16. From the narration of facts, it could be seen the whole dispute boils down to only one issue, and that is:
Whether Umadevi had executed the agreement of sale dated 24.1.2004 in favour of R.Venkatesh and if so, whether she had instructed him to make payment to persons referred to above to be adjusted later towards the sale price?
17. To establish this aspect, the plaintiff-transferee under the agreement firstly has to establish the transaction between him and Umadevi and for that purpose, establish the agreement itself. He has tendered evidence as PW1 in the suit and examined a witness. To establish he had made payment to Keshav Murthy in a sum of Rs.2,00,000/-, Keshav Murthy would have been the best witness. To establish he had made payment to Srinivas Murthy in a sum of Rs.1,00,000/-, Srinivas Murthy would have been the best 17 witness. To establish he had made payment to Sridhar in a sum of Rs.6,00,000/-, Sridhar would have been the best witness. None of them have been examined nor any acknowledgement is produced from them acknowledging receipt of the amount as claimed by the plaintiff to have paid to them. When confronted with this situation, it was urged on behalf of the plaintiff that Exs.P7 to P9 (cheques) would show they were in possession of those persons and after receipt of the amount indicated above, they returned the same to him. In other words, possession of those cheques is claimed to be unimpeachable evidence to show he has made payment to them.
18. Reliance is also placed on Exs.P3 to P6, receipts purporting to have been issued by those recipients. Ex.P3 is under the signature of Keshav Murthy dated 14.2.2004 acknowledging Rs.2,00,000/-. Ex.P4 is under the signature of Sridhar acknowledging Rs.6,00,000/-; Ex.P5 is a receipt for Rs.1,00,000/- under the signature of Srinivas Murthy, and Ex.P6 is a receipt signed by M.S.Jayanthi for receiving 18 Rs.2,25,000/- on 6.3.2004. None of these receipts marked at Exs.P3 to P6 are proved under signature of the persons to whom it purports as none of them have been examined. It is material to note the narration in the receipt. It reads thus:
'Ex.P3 - Today I received Rs.2,00,000/- (Rupees Two lakhs only) by cheque bearing No.498118 drawn on Indian Bank, Malleswaram, Bangalore - 560 003 from Sri R.Venkatesh, M/s Sandeep Textiles, No.6, 5th Cross, Malleswaram, Bangalore - 560 003 and handed over the Cheque bearing No.00322, drawn on Sree Charan Co-operative Bank Ltd., Gandhi Bazar Branch, Basavanagudi, Bangalore - 560 004 for Rs.2,00,000/- to Sri R.Venkatesh.
Ex.P4 - Today I received Rs.6,00,000/- (Rupees Six Lakhs only) by Two Demand Drafts each for Rs.3,00,000/- dated 14.02.2004 bearing No.296301 & 296302 drawn on Indian Bank, Malleswaram, Bangalore - 560 003 from Sri R.Venkatesh, M/s Sandeep Textiles, No.6, 5th Cross, Malleswaram, Bangalore - 560 003 and handed over the Cheque bearing No.0194999 drawn on Reserve Bank Employees' Co op Bank Ltd., Bangalore for Rs.6,00,000/- to Sri R.Venkatesh.
Ex.P5 - Today I received Rs.1,00,000/- (Rupees One Lakh only) by cash from Sri R.venkatwesh, M/s Sandeep Textiles, No.6, 5th Cross, Malleswaram, Bangalore - 560 003 and handed over the Cheque bearing NO.020285, drawn on Sree CHaran Co-operative Bank Ltd., Gandhi Bazar Branch, Basavanagudi, Bangalore - 560 004 for Rs.1,00,000/- to Sri R.Venkatesh.
19Ex.P6 - Today I received Rs.2,25,000/- (Rupees Two Lakhs Twenty Five Thousand only) by cash being the Security Deposit and Rs.15,000/- (Rupees Fifteen thousand) being the Electricity Charges from Sri R.Venkatesh, M/s Sandeep Textiles, No.6, 5th Cross, Malleswaram, Bangalore - 560 003 and handed over the symbolic possession of the premises situated at NO.259, 'Sri Raksha'. Kothanoor village, Uttarhalli HObli, Bangalore South Taluk, Bangalore District, Bangalore layout formed by the RBI Staff and others Co-operative Housing Society Ltd., Bangalore to Sri R.Venkatesh.' Name of Umadevi is conspicuous by its absence. There is no statement in the receipts Ex.P3 to Ex.P6 that, the recipients received the amount towards liability of Umadevi. In other words, the contention of R.Venkatesh that Umadevi's cheques which were in possession of those persons were taken back by him by paying the amount under the cheques is also not spelled out in the receipts. Had it been so, the receipt would have mentioned the name of Umadevi as drawer and there would have been mentioned that amount paid by Venkatesh towards her liability. Similar would be the case with the other receipts. There is no explanation from the plaintiff. The least we expected is plaintiff to examine them to elicit from their 20 ocular testimony that the transaction initially was between them and Umadevi and as she could not pay the amount, they recovered it from R.Venkatesh who was authorized to pay it to adjust it towards the sale price. That evidence is not produced and has created, undoubtedly, a serious dent in the case of the plaintiff beyond rapair and leaves a void unfilled. Mere production of cheques under the signature of Umadevi would not be the answer, especially when she has termed the plaint allegation as a result of sinister design to defraud her. Mere issuance of notice to Umadevi to execute the sale deed based on the plea that he has made payments to Keshav Murthy, Srinivas Murthy, Jayanthi and Sridhar will undoubtedly be of no avail.
19. It is the settled principle of law that one who pleads must prove. He has pleaded these facts and to be entitled to a decree for specific performance, the plaintiff ought to have proved it. Onus rests upon him and unless discharged with acceptable evidence, the pleadings could not have translated into legal evidence to hold he had made 21 payments to Keshav Murthy, Srinivas Murthy, Jayanthi and Sridhar, either on the instructions of Umadevi or on her behalf. Once it is so, there is no escape but to hold that he has failed to prove he has made those payments, and was due only Rs.2,10,000/- to be paid to Umadevi. Learned trial judge has seriously erred in failing to notice that the plaintiff had failed to discharge the burden of proof. Needless to say the mandate of Section 3 of the Evidence Act has been flouted in appreciating the so-called evidence tendered by him. The learned trial judge was so impressed by his pleadings and ocular testimony it misled itself in belief that production of cheques under the signature of Umadevi was a clincher to establish payment of amount towards sale consideration.
20. I do not wish to refer to other plethora of evidence brought which has no significance when the basic ingredient to prove the transaction was not brought before court. What is an 'agreement' and when it becomes enforceable is well defined under the provisions of the Indian Contract Act. 22 Reference necessarily needs to be made to Section 10 of the Contract Act which reads thus:
'10. What agreements are contracts - All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.' Therefore, it is not enough even if the agreements is signed unless it is result of free will and consent, besides it must be for a valuable consideration with lawful object. If the consideration is not proved, it would not be construed as a contract in view of the said provision. How 'free will' is to be proved could be found in Section 14 which defines 'free will' and 'lawful consideration' is found in Section 23 of the Act.
21. In the instant case, R.Venkatesh on his own volition has declared the transaction was for a consideration of 23 Rs.12,40,000/-. It would be lawful consideration if it had been discharged in the manner known to law, but not with fictitious or collusory material, as has been done in the case. Though repetition it may be, the fact remains that the so-called payments made by R.Venkatesh are not proved except for documents referred to above in which there is no reference to the alleged vendor/transferor, i.e. Umadevi.
22. The learned trial judge though framed several issues, confined his consideration only to Exs.D2 to D6 produced by the defendant, and other documents. In these correspondences, she had sought to prove she had issued blank cheques to Sridhar and others. Therefore, the learned judge characterized the defendant as a person who had taken an inconsistent plea. Such opinion is formed on the basis that in the written statement, she had described Keshav Murthy and others as strangers, but her own admission shows she had put a volte face and stated she had given blank cheques to them. He further referred to 24 her admission in cross-examination that she had rented the schedule premises to Jayanthi and had to return Rs.2,25,000/- obtained as advance. Such admission is of no consequence for the reason, she had admitted Jayanthi to be her tenant and had to refund Rs.2,25,000/- at the time of vacating. This did not establish that the plaintiff had paid the amount to Jayanthi towards the said transaction. At the most, when Jayanthi is evicted, Umadevi will be liable to refund the said amount and nothing more.
23. Besides, learned judge in paragraph 19 of the judgment refers to proof of the agreement dated 24.1.2004 by referring to Ex.P2 and the signature appearing thereon. According to him, the signature identified as Ex.P2(a) is of the defendant and that proves she has validly executed the agreement. He refers to the signature of her husband and Usharani appearing in Ex.P2 as witnesses, but the learned judge failed to notice that Usharani was not summoned, nor the defendant's husband who is said to be the attestor to the agreement. In this manner, learned judge off-tracked 25 the main issues to hold the agreement was proved and imported reference from the decision of this court reported in ILR 2007 KAR 247 which deals with the dispute relating to signature under the agreement and power of the court to examine it by virtue of Section 73 of the Evidence Act.
24. I do not wish to refer to other circumstances highlighted by the learned trial judge as being in favour of the plaintiff for two reasons, firstly, even if Ex.P2 dated 24.1.2004 was established, the plaintiff had failed to establish payment of sale consideration, and secondly, plaintiff had miserably failed to establish payment to those persons was for and on behalf of Umadevi. Lastly, even if it was proved that he had paid the amount to them under the instructions of Umadevi under the terms of the agreement, the trail court has failed to record finding that decree for specific performance?, was necessary. Every contract though lawful does not justify decree for specific performance which is a discretionary relief. Section 20 of the Specific Relief Act was not noticed by the learned judge 26 in decreeing the suit which permits grant of decree for specific performance subject to several conditions enumerated in clauses (a), (b) and (c). Besides, plaintiff had failed to aver and prove he was always ready and willing to perform his part of the obligation as required under Section 16(c).
25. For the reasons discussed above, I am satisfied the impugned judgment directing specific performance of the alleged agreement of sale dated 24.1.2004 is unsustainable and accordingly it is set aside. The suit, O.S.5030/04 filed by R.Venkatesh (respondent herein) stands dismissed. R.F.A.1593/10 is accordingly allowed with no order as to costs.
26. In view of setting aside the judgment and decree for specific performance in favour of R.Venkatesh, the cloud if any, created on the right, title and interest of the decree holder is now removed. It has dissipated and Umadevi (defendant in the suit) enjoys absolute title and having obtained the decree, In HRC 63/2007 she is entitled to the 27 fruits of it. All defences taken in Exn.P.293/11 being untenable are rightly set aside by the trial court and the impugned order dated 10.8.2011 is affirmed. Execution to proceed to reach a logical end. However, taking into consideration all attending circumstances, the revision petitioner in H.R.R.P.149/11, Smt.M.S.Jayanthi is granted time but directed to deliver vacant possession of the premises to the landlord, Smt.Umadevi within two months from today and issuance of delivery warrant shall be kept in abeyance till then. H.R.R.P.149/11 stands allowed in these terms.
Sd/-
JUDGE vgh*