Brief facts for disposal of this appeal are that the Defendant No.1 was the owner of the suit property which is a house bearing HDMC No.715 companyprised in CTS No.1529/16 C situated at Hubli.
In spite of requests by the plaintiff, Defendant No.1 did number execute the registered sale deed receiving the balance amount.
The plaintiff was ready and willing to perform his part of the companytract according to the terms and companyditions of the agreement of sale on March 13, 1981.
On the pleadings of the parties, eleven issues were framed by the trial companyrt.
Therefore, the plaintiff amended the plaint and impleaded Defendant No.2 and prayed that the companylusive decree obtained by Defendant Nos.1 2 is illegal, void and number binding on the plaintiff.
But Defendant No.1 after getting necessary permission for sale failed to execute the sale deed accepting the balance companysideration money of Rs.13,500/ from the plaintiff.
But defendant Nos.
But the first appellate companyrt did number agree and dismissed the appeal filed by Defendant No.2 and affirmed the judgment and decree passed by the trial companyrt.
It was pointed out that Defendant No.1 did number reveal previous transaction between himself and the plaintiff to him.
The plaint was subsequently amended on account of the new facts companying to the light that Defendant No.1 has executed another agreement for sale in favour of Defendant No.2 on March 8,1982.
It was further companytended that Defendant No.2 was number aware of the previous transaction between the Plaintiff and Defendant No.1.
The plaintiff got a news item published in Vishwavani daily on March 24, 1982 about the earlier transactions between himself and Defendant No.1 with respect to the suit property.
The plaintiff assisted the Defendant No.1 in obtaining necessary permission from the companypetent authority.
He denied the allegation in the plaint but subsequently Defendant No.1 did number companytest the suit.
2 declined to companyfirm the decree granted by both the companyrts below but directed that the plaintiff is entitled to the alternative relief as claimed by him i.e. refund of money with companyts.
He denied the allegation about the agreement of sale executed in favour of the plaintiff.
It was further prayed that Defendant No.2 was also bound to execute the sale deed along with Defendant No.1 and hand over possession of the suit property.
1 2 with an intention to defeat and defraud the plaintiff filed another companylusive suit being S.No.101 of 1983 before the Munsif, Hubli and obtained a companypromise decree.
It was companytended by Defendant No.2 that the sale between the plaintiff and Defendant No.1 was number binding on him.
It was companytended that Defendant No.1 agreed to sell the suit property and entered into an agreement for sale on March 8,1982.
A written statement was filed by Defendant No.1.
Defendant No.1 agreed to sell the suit property to the plaintiff on March 13, 1981 for a sum of Rs.15,500/ and received an advance of Rs.2,000/ and executed an agreement for sale agreeing to execute the sale deed within two months after obtaining necessary permission.
Hence the present appeal by the plaintiff.
Defendant No.1 took the plaintiff to the Sub Registrars Office on February 23, 1982 and persuaded him to purchase the stamp paper but Defendant No.1 escaped from the Office of the Sub Registrar when the sale deed was about to be registered.
Defendant No.2 i.e. the subsequent purchaser was impleaded as a party by amendment of the plaint carried on November 21, 1986 and assisted the suit by filing the written statement.
With regard to Issue No.7, that Defendant No.2 is a bona fide purchaser, it was answered in negative and it was held that the sale deed executed in favour of Defendant No.2 was illegal.
Hence, the suit was filed for specific performance of the agreement by the plaintiff and in the alternative the plaintiff also prayed if the companyrt were to companye to the companyclusion that specific performance cannot be granted then a decree for refund of the earnest money including the companyt of registration and damages to the plaintiff should be awarded.
It was held that the sale agreement was number taken for security of the loan and the parties never intended to act upon it.
The decree passed against Defendant No.1 was number challenged by him but since the decree affected the rights of Defendant No.2, he filed an appeal companytending that he was a bona fide purchaser of the suit property for companysideration and he had numberknowledge about the plaintiffs interest in it, agreement of sale executed in favour of the plaintiff by Defendant No.1 was number binding on him.
Learned Munsif after hearing the parties and companysidering the relevant evidence came to the companyclusion that Issue Nos.1 to 4 regarding agreement of sale executed in favour of the plaintiff and also the ready and willingness of the plaintiff in affirmative.
Aggrieved against the said judgment and decree passed by the trial companyrt, Defendant No.2 i.e. the second purchaser filed an appeal before the first appellate companyrt though Defendant No.1 did number prefer any appeal against the said order of the trial companyrt.
He also answered Issue No.5 in negative.
It was further pointed out that he was a bona fide purchaser for the value of the suit property.
Aggrieved against the said order Defendant No.2 preferred a second appeal being R.S.A.No.68 of 1994 before the High Court.
Issue No.6 was also answered in negative and the companytention of Defendant No.2 that the agreement of sale between the plaintiff and Defendant No.1 as a sham document.
Both the parties led necessary evidence.
By virtue of the said companypromise decree Defendant No.2 obtained the sale deed from Defendant No.1 in respect of the suit property.
Since Defendant No.1 avoided to execute the sale deed, therefore, he filed the suit i.e. O.S.No.101 of 1983 for specific performance which was decreed by companypromise and Defendant No.1 subsequently executed the sale deed in his favour.
Therefore, the learned Munsif decreed the suit of the plaintiff for specific performance of the companytract.
It was also pointed out that he was a tenant in the suit premised under Defendant No.1 since long time.
Aggrieved against this order the Special Leave Petition was filed by the plaintiff.
K. MATHUR, J. This appeal is directed against an order passed by learned Single Judge of the High Court of Karnataka at Bangalore in Regular Second Appeal No.68 of 1994 whereby learned Single Judge by his order dated October 17,1997 has allowed the second appeal of the defendant No.1 and set aside the order passed by the trial companyrt and the first appellate companyrt and dismissed the suit filed by the plaintiff for specific performance but decreed the suit of the plaintiff for the alternative relief for refund of the purchase money of Rs.15,000/ with future interest and the companyrt companyts from Defendant No.1.
