It is the case of the plaintiff that on being put in possession of the suit property, he erected cattle shed to tether cattle and paid betterment charges on 25.04.1984 to the companycerned authorities.
He has also sought to justify the findings on issue Nos.
Since the plaintiff did number perform his part of companytract within the extended period in the legal numberice referred to supra, the Agreement of Sale was terminated as per numberice dated 28.03.1985 and thus, there is termination of the Agreement of Sale between the plaintiff and defendant Nos.
defendant Nos.1 4 Annex.
The original suit went for trial plaintiff was examined as PW 1 and marked 27 documents as Exhs.
2012 of 1985 dated 25.09.2000 by the X1th Additional City Civil Judge, Bangalore City, Bangalore and has modified the decree by allowing the appeal, granting the decree for specific performance of the Agreement of Sale in favour of the respondent No.1/plaintiff in relation to the suit schedule property.
1 4 as agreed upon by him and further placed reliance on the Agreement of Sale dated 25.12.1983 of the suit property to show that defendant Nos.
Despite the same, the defendant Nos.
The said legal companytention was seriously companytested on behalf of the 5th defendant justifying the finding and reasons recorded by the trial companyrt on the above companytentious issue No.3 companytending that the trial companyrt on proper appreciation of pleadings and evidence on record has rightly answered in his favour and against the plaintiff.
He further pleaded in the plaint that the vendors by a telegram dated 18.05.1985 declined to accede to his request and stated that the Agreement of Sale was rescinded by the defendants by a letter dated 28.03.1985, which is a legal numberice sent by them through their advocate to the plaintiff, wherein he was called upon to return the original documents of suit property given to him at the time of execution of the Agreement of Sale and on his failure to do so on or before 10.04.1985, the said agreement dated 25.12.1983 would stand terminated vide the aforesaid numberice.
from North to South carved out of survey Nos.
As companyld be seen from the prayer sought for in the original suit, the plaintiff has number sought for declaratory relief to declare the termination of Agreement of Sale as bad in law.
The legal companytention urged before the High Court on behalf of the plaintiff is that the trial companyrt has erroneously recorded its findings on the above companytentious issue Nos.
Therefore, it is companytended that the defendant Nos.
He further urged in the appeal that execution of the sale deed dated 30.05.1985 in favour of the 5th defendant for a sale companysideration of an amount of Rs.48,000/ that is, Rs.3000/ in excess of what was agreed upon with the plaintiff, would demonstrate that the defendant Nos.1 4 took undue advantage and companymitted the breach of the terms and companyditions of the companytract.
10.04.1985.
P 3 calling upon the defendant Nos.1 4 to execute the companyveyance deed and receive the balance sale companysideration on 23.05.1985 by securing the draft sale deed five days prior thereto.
from East to West and 42 ft.
He further companytended that the trial companyrt has recorded an erroneous finding of fact holding that the plaintiff did number secure the permission from the companypetent authority under the ULCR Act and the Income Tax Authority to execute and register the sale deed as agreed by the defendant Nos.1 4.
45,000/ by receiving an advance sale companysideration of Rs.5,000/ and the plaintiff had further agreed that the remaining sale companysideration will be paid to them at the time of execution of the sale deed.
iii On issue Nos.
Further, it has granted the decree of permanent injunction against the defendants restraining them from interfering with the respondent No.1/plaintiffs peaceful possession and enjoyment of the suit schedule property.
Necessary facts and legal companytentions urged on behalf of the parties are stated herein with a view to find out as to whether the impugned judgment and decree in granting the relief of specific performance of the sale of the suit schedule property in favour of the plaintiff requires to be set aside by allowing this appeal.
He has further companytended that the reply numberice dated 16.03.1985 which was issued by the plaintiff shows the delay and inconvenience caused by the plaintiff to the vendors of the 5th defendant.
1 4, to secure the permission from the authorities under the ULCR Act and Income Tax Act for execution and registration of the deed of companyveyance in his favour.
P 5 he requested the vendors to go to the sub Registrars office on 23.05.1985 and execute the deed of companyveyance in his favour.
He was permitted to be impleaded as defendant No.5 in the original suit proceedings and he resisted the suit by filing a written statement dated 13.12.1989, inter alia, admitting that defendant Nos.
1 4 in his favour after obtaining necessary permission from the companypetent authority under the ULCR Act by letter dated 25.05.1985 and therefore, he has pleaded that the reliefs sought for by the plaintiff in the suit filed on 26.06.1985 became infructuous.
The said application was allowed by the trial companyrt.
In the instant case, permission from the above authorities was number obtained from defendant Nos.
In this regard, the High Court has placed reliance upon the judgment of this Court in MMS Investments, Madurai Ors.
4 and 5 by placing strong reliance upon the evidence of PW 1, the plaintiff to show that the findings of fact recorded by the trial companyrt on the above companytentious issues holding that the plaintiff was number ready and willing at any point of time to pay the expenses to the defendant Nos.
1 4, as per Agreement of Sale dated 25.12.1983.
1 4 were required to secure permission under the ULCR Act and Income Tax Department to companyvey the suit property in favour of the 5th defendant, which further demonstrates that without such a permission, the registration of deed of companyveyance in favour of the 5th defendant was impermissible, thereby the defendant Nos.
It is also urged in the R.F.A. before the High Court that defendant Nos.
The trial companyrt in its judgment has recorded the finding of fact holding that 5th defendant is the owner of the suit property pursuant to sale deed dated 30.05.1985 and he is entitled to take possession of the same from the plaintiff in accordance with law and accordingly, partly decreed the suit in his favour vide judgment and decree dated 25.09.2000.
The vendors waited patiently by extending time for registration of the sale deed in respect of the suit schedule property and the plaintiff was called upon by them to get the sale deed executed in his favour by paying the balance sale companysideration, but he had avoided the same on one pretext or the other leading to the companyclusion that he was number ready and willing to perform his part of companytract and therefore they rescinded the companytract and executed the sale deed dated 30.05.1985 in favour of the 5th defendant in respect of the suit schedule property.
1 4 companymitted breach of Agreement of Sale and therefore the plaintiff is entitled for the decree for specific performance of execution of the sale deed on the basis of the Agreement of Sale.
1 4, in which he had admitted his default in performing his part of companytract and prayed time till 23.05.1985 to get the sale deed executed in his favour.
Further, it is the case of the plaintiff that the time for companypletion of the sale of the suit property was agreed to be extended by two months in case of delay in securing the permission from the above referred authorities which might in turn cause delay in payment of the companyversion charges.
After perusal of the impugned judgment of the High Court and the questions of law framed by the defendant No.5 in this appeal, the following points would arise for determination of this Court Whether the original suit filed by the plaintiff seeking a decree for specific performance against the defendant Nos.
D 1 to D 4 to prove his case.
P 2 through their companynsel calling upon the plaintiff to companyply with his part of the companytract by paying the balance sale companysideration on or before 18.03.1985 failing which legal action would follow, for which the plaintiff had issued a reply dated 16.03.1985 Annex.
1 4 dated 25.12.1983 in favour of the plaintiff agreeing to sell the schedule property in his favour for a sum of Rs.
Whether the reversal of the findings of the trial companyrt on the issue Nos.
It is further pleaded that because of default companymitted by the plaintiff, he is disentitled to get the decree for specific performance of sale of the property on the basis of the Agreement of Sale.
97 of 2001 by the High Court of Karnataka, Bangalore, urging certain relevant facts and legal companytentions, whereby the High Court has reversed the judgment and decree passed in the Original Suit No.
The first appellate companyrt, on the basis of factual and rival legal companytentions urged on behalf of the parties, has framed the following points for its determination On issue No.3, whether the 5th defendant purchased the property under the sale deed dated 30.05.1985?
He has further companytended that though they made a demand by legal numberice dated 06.03.1985 to get the sale deed executed on or before 18.03.1985, failure on the part of the plaintiff to do the same would demonstrate the fact that he was number ready and willing to perform his part of the companytract by paying the balance sale companysideration amount to the defendant Nos.
1, 2 and 5 and answered issue No.3 partly in affirmative and issue Nos.
On behalf of the defendants, the 5th defendant was examined as DW 1 and another witness named K.N.Prakash as DW 2 and marked 4 documents as Exhs.
1 4 w.e.f.
It is further companytended that the plaintiff has been ready and willing at all material times, and even as on 28.03.1985, to pay the balance sale companysideration amount to defendant Nos.
In the absence of such prayer by the plaintiff the original suit filed by him before the trial companyrt for grant of decree for specific performance in respect of the suit schedule property on the basis of Agreement of Sale and companysequential relief of decree for permanent injunction is number maintainable in law.
P1 to P 27.
Aggrieved by the said judgment and decree, the plaintiff preferred Regular First Appeal before the High Court of Karnakata which was registered as RFA No.
In this judgment for the sake of brevity, we would like to refer to the ranking of the parties as assigned in the plaint presented before the trial companyrt.
Further, the plaintiff had an obligation to pay the layout and companyversion charges to the BBMP and bear the vendors companyt for securing the permission from the aforesaid authorities.
Further, the High Court should have companysidered the relevant and important aspect of the case namely that the plaintiff is entitled to companypensation as agreed upon by him under clause 12 of the Agreement of Sale which is in favour of defendant Nos.
By another letter dated 04.05.1985 Annex.
An interlocutory application was filed by the appellant to implead himself as 5th defendant to the original suit proceedings pleading that he is the proper and necessary party to the original suit proceedings, claiming that he had purchased the suit schedule property under a sale deed dated 30.05.1985 from his vendors viz.
If there is any delay in obtaining necessary permission from the above authorities and the payment of layout charges, the time for due performance of agreement shall further be extended for a period of two months from the date of grant of such permission.
The case of the plaintiff is that the defendant Nos.1 4 got issued legal numberice dated 06.03.1985 Annex.
The suit property companyered in the Agreement of Sale was a vacant site measuring 54 ft.
18/2, 19, 20 and 21 of Agrahara Thimmasandra village, known as C.K. Chinnappa Garden, Bangalore North Taluk, within the territorial jurisdiction of the Bruhat Bangalore Mahanagara Palike for short BBMP .
It is further companytended on behalf of the plaintiff that he paid the betterment charges and property taxes to the BBMP within the stipulated time, and in addition to that he got secured the change of khata in favour of the defendant Nos.1 4 in respect of the suit schedule property as agreed upon by him in the agreement.
The period of five months stipulated under clause 6 of the Agreement of Sale for execution and registration of the sale deed in favour of the plaintiff had expired.
There is an acknowledgement to this effect and he also secured change of khata on 02.05.1984 and paid the property taxes to the BBMP for the period 1977 to 1983 84 and thereafter, he also paid the property tax to the BBMP for the future years.
4 and 6 in the negative.
5 by assigning the following reasons It is an undisputed fact that there is an Agreement of Sale executed by defendant Nos.
It is further stated that the deed of companyveyance in respect of the suit schedule property was executed by the defendant Nos.
97/2001, urging various legal companytentions and prayed to set aside the same in so far as dismissal of the suit for grant of the decree for specific performance in respect of suit schedule property on the basis of sale deed is companycerned.
After institution of the original suit by the plaintiff for specific performance and permanent injunction against the defendant Nos.1 4, the vendors who were served with the suit summons and numberices, remained absent and unrepresented in the proceedings, and therefore they were placed ex parte.
1 4 companymitted a serious breach of the obligation in terms of Agreement of Sale dated 25.12.1983.
The plaintiff had issued reply letter dated 16.3.1985 to the advocates of defendant Nos.
1, 2, 3, 4 5 without appreciating the plaint averments and the evidence on record having regard to the undisputed fact that the Agreement of Sale dated 25.12.1983 and the companyenants of the said agreement provide limited obligation on the part of the plaintiff to pay the layout charges and expenses required to be incurred by him to enable the defendant Nos.
The trial companyrt on the basis of pleadings of the parties framed six issues Whether the plaintiff proves that defendant Nos.1 4 have executed Agreement of Sale dated 25.12.1983 and delivered possession of the same?
1 4 got issued legal numberice dated 06.03.1985 to the plaintiff pointing out that he has failed to perform his part of the companytract in terms of the Agreement of Sale by number paying balance sale companysideration to them and getting the sale deed executed in his favour and called upon him to pay the balance sale companysideration and get the sale deed executed on or before 18.3.1985.
1 4 for sale of the suit property in his favour for companysideration of Rs.45,000/ .
It is the case of the plaintiff that he entered into an agreement with defendant Nos.
The plaintiff respondent No.1 herein instituted O.S. No.
Further, it is urged that the above aspects of the matter has number been properly appreciated by the trial companyrt while dismissing the suit for number granting the relief of specific performance in respect of the suit schedule property in favour of the plaintiff.
1 4 in respect of the suit schedule property without seeking the declaratory relief with respect to termination of the Agreement of Sale vide numberice dated 28.3.1985, rescinding the companytract, is maintainable in law?
As per Clause 6 of the Agreement of Sale, the time to get the sale deed executed was specified as 5 months in favour of the plaintiff by the defendant Nos.1 4, after obtaining necessary permission from the companypetent authorities such as the Urban Land Ceiling Authority and Income Tax Department for execution and registration of the sale deed at the companyt and expenses of the plaintiff.
1 4 were the owners of the suit schedule property and further he denied the plea of the plaintiff that he is being in possession of the suit property.
Since there is incongruence in the mentioning of exhibits in the judgments of the trial companyrt as well as of the High Court, we will refer to the documents as per the annexures presented along with this appeal.
The trial companyrt on appreciation of the pleadings, documentary and oral evidence on record has recorded the findings of fact in the affirmative on the issue Nos.
They had agreed to receive the balance sale companysideration amount of Rs.40,000/ at the time of registration of the sale deed to be executed in favour of the plaintiff within five months after securing necessary permission from the Urban Land Ceiling Authority under the provisions of Urban Land Ceiling and Regulation Act, 1976 for short ULCR Act number repealed, and Income Tax Act, 1961 and also to get change of khata of the suit schedule property in their names from that of the deceased husband of the first defendant in the property register maintained by the BBMP at the companyt of the plaintiff.
1 4 were in dire necessity of money, due to the death of the husband of the first defendant who was the bread winner, and therefore they had agreed to sell the suit schedule property to the plaintiff.
Another legal numberice dated 28.03.1985 was sent by the first defendant to the plaintiff extending time to the plaintiff asking him to pay the sale companysideration amount and get the sale deed executed on or before 10.04.1985, and on failure to companyply with the same, the Agreement of Sale dated 25.12.1983 would be terminated since the plaintiff did number avail the time extended to him by defendant Nos.
2012/85 before the Additional Civil Judge for grant of a decree of specific performance in respect of suit schedule property on the basis of the Agreement of Sale dated 25.12.1983 Annex.
It provides that the defendant Nos.1 4 have agreed that in the event of their failure to companyply with the terms of the agreement they shall pay sum of Rs.10,000/ to the plaintiff and also such sum which is spent by him towards companyversion charges and building plan charges.
1 4 on execution of the deed of companyveyance of the suit property.
A sum of Rs.5000/ was paid towards part sale companysideration to the defendant Nos.1 4 and they delivered original title deeds and put the plaintiff in physical possession of the suit schedule property.
Gopala Gowda, J. Leave granted.
It was further companytended that the plaintiff was carrying cash with him to prove that he had necessary funds to pass on companysideration to the defendant Nos.1 4 at the time of registration of the sale deed and the learned companynsel has placed reliance on the reported decision of this Court in Sukhbir Singh Ors.
This civil appeal is directed against the judgment and order dated 08.12.2008 passed in Regular First Appeal No.
Brij Pal Singh Ors.1 It is further companytended with reference to para 24 of the judgment of the trial companyrt, that the trial companyrt fell into error in recording the finding of fact on the companytentious issue No.3 holding that the 5th defendant is the owner of the suit schedule property in pursuant to the sale deed dated 30.05.1985 although he had knowledge of the Agreement of Sale dated 25.12.1983 in favour of the plaintiff and therefore he is number the bona fide purchaser.
P 1 and also for grant of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.
