This regular first appeal is by the plaintiff in O.S. No. 29 of 1997, on the file of the Civil Judge (Senior Division), Sirsi, dismissing the suit of the plaintiff for recovery of possession of the suit schedule property and for mesne profits.

2. The plaintiff had sought for recovery of the possession of the suit schedule property and for damages for the use and occupation by the defendant on the premise that though there was an agreement dated 1-5-1989 (Ex. P. 1) between the parties, by which the plaintiff agreed to sell the suit schedule property to the defendant for a consideration of Rs. 69,000/-, the plaintiff had repudiated the contract with the defendant for not performing his part of the obligations under the contract and therefore the plaintiff was not only entitled for possession but also for the mesne profits from the date of repudiation of the contract till the date of recovery of possession of the suit schedule property.

3. Learned Trial Judge, taking the view that the plaintiff had not made good his case that the defendant was the cause for the agreement not coming through and further the plaintiff having failed to make home his case that the defendant had failed to perform his part of the contract, dismissed the suit. Aggrieved by the said judgment and decree, the present appeal.

4. The basic fact is that the property was one which had been constructed by the plaintiff on a land leased in his favour by the Dandeli City Municipal Council. In fact, the plaintiff being the legal heir of one late Mohammed Hashan Soudagar and Smt. Razbi Mohammed Hasham Soudagar, and the land on which the building had been constructed was leased in favour of the mother of the plaintiff and on the demise of parents of the plaintiff, the plaintiff had succeeded to the property etc. This property was agreed to be conveyed in favour of the defendant in terms of the agreement dated 1-5.1989 (Ex. P. 1).

5. It is not in dispute that pursuant to the agreement, the defendant was put in possession of the property on 24-8-1989 and by this time the plaintiff had received a sum of Rs. 35,000/- in all, paid in cash, cheque and demand draft, as detailed below:

1-5-1989 (cash) Rs. 3,000/-

5-5-1989 (cheque) Rs. 17,000/-

24-8-1989 (cash) Rs. 500/-

24-8-1989 (DD) Rs. 14,500/-

Total Rs. 35,000/-

It is also the common case of the parties that the balance was to be paid at the time of registration and that the plaintiff was required to take necessary steps to ensure the registration by or before the expiry of 37 days from the date of agreement by paying full consideration by then, as pleaded by the plaintiff and indicated in the legal notice dated 4-10-1989 (Ex. P. 4); that the defendant had l.3iled to pay the amount and keep up the promise and therefore the plaintiff was constrained to cause the legal notice dated 4-10-1989 repudiating the contract and calling upon the defendant to pay a sum of Rs. 27,500/- by was of damages and for the use and occupation of the suit schedule property till the date when the contract being repudiated as the defendant had not performed his part of the obligations under the contract even after the expiry of three months from the date of agreement.

6. It is thereafter, the plaintiff filed the suit for recovery of possession and for damages on 5-7-1995 when it was so filed. The plaintiff had pleaded that the agreement having been repudiated and notwithstanding the defendant having continued in possession of the suit schedule property, the plaintiff was not only entitled for recovery of possession, as on and after the repudiation of the contract, the possession of the defendant became unauthorised but also for compensation for the occupation and for mesne profit.

7. On issue of notice, the defendant entered appearance and filed written statement. It was contended in the written statement that the suit is not maintainable; that the plaint averments are denied. But, the agreement as such was admitted and the conte