( 1 ) THESE appeals are filed under Sec. 96 of the CPC being aggrieved by the judgment and decree passed by the I Addl. City Civil Judge, Bangalore in OS 2400/1985 dated 4. 11. 1995. RFA 766/1995 is an appeal against the judgment and decree of specific performance passed against the appellant/defendant directing him to execute the sale deed in respect of the suit schedule property in suit bearing No. 18/a measuring 85 ft. East-West, 24+25/2 ft and North-South situate at I phase, Gokul I Stage, Bangalore within three months from the date of the judgment, on payment of the balance consideration after deducting the advance amount paid. RFA 768/1995 is filed by the appellant/plaintiff being aggrieved by the dismissal of the suit seeking for specific performance against the defendant in respect of the adjacent marginal land to the suit property.

( 2 ) THE plaintiff s case in brief is that the plaintiff and defendant are co-brothers. On 17. 12. 1975, both the parties entered into an agreement in respect of the property as noted above, wherein the defendant had agreed to sell the said site along with the marginal land adjacent to it, at the rate of Rs. 135/- and Rs. 95/- respectively per square and as per the agreement, defendant had to obtain the necessary certificates by paying layout charges, taxes and other amount to the CITB (now BDA ). It was for the defendant to secure necessary possession certificate for the adjacent marginal land before executing the sale deed. At the time of agreement. for sale, the plaintiff is said to have paid an amount of Rs. 16,000/- as part of the consideration. Subsequent thereof on 1. 6. 1976 about Rs. 18,000/- was paid arid another Rs. 5,000/- was paid on 6. 7. 1982 in the presence of some of the witnesses like Govindaraju and other persons. For tile subsequent payments there are no receipts. The defendant had undertaken to clear all formalities and to execute the sale deed and also documents in respect of marginal land from the then CITB as stated by him. It is averred that plaintiff was. given possession of the suit schedule property on the date of agreement as part performance of the contract. Plaintiff in turn, had leased out the said suit, schedule site to one Mohammed Salahia s/o Mohammed Ghouse on 30. 5. 1977 on execution of rental karar which was said to be attested by the defendant. The plaintiff was collecting the rent from the said tenant. Out of the total amount of consideration, about Rs. 39,000/- was said to have been paid and according to the plaintiff, he was all along ready and willing to perform his part of the contract and was ready to pay the balance consideration and get the sale deed executed in his favour. Further, it is averred that a meeting/panchayat was held demanding tile defendant to execute the sale deed prior to the issuance of legal notice on 8. 6. 1985. Although the plaintiff by issuing a legal notice called upon the defendant to execute the sale deed, neither he replied nor executed the sale deed. Hence, the suit. It is also averred that the cause of action arose on 17. 12. 1975 and subsequently as and when payments were made and after issuance of legal notice demanding specific performance.

( 3 ) FURTHER, during pendency of the suit, the plaintiff also got the plaint amended and averred that defendant was bound in law to obtain necessary possession certificate in respect of the marginal land after paying the necessary charges. Accordingly, he has sought for a direction to the defendant to obtain possession certificate in respect of the marginal land and also to execute the sale deed as undertaken in the agreement.

( 4 ) THE defendant contested the suit by filing Written statement. Although he has admitted the agreement dated 17. 12. 1975 but, he declined to admit the subsequent payments made. Further, he has also stated that the persons upon whom the plaintiff is relying upon to hold that subsequent payments were made in the presence of pers