(RSA filed U/S.100 CPC against the judgment dated 13.03.02 passed in RA No.24/00 on the file of the district judge, Gadag, dismissing the appeal and confirming the judgment and decree dated

10.7.95 passed in OS No.63/92 on the file of the civil judge, Gadag.)

The appellant/defendant has come up with this second appeal under Section 100 CPC challenging the judgment and decree dated 10-7-1995 passed by the Civil Judge, Gadag in O.S.No.63/1992 which is confirmed by the judgment and decree dated 13.3.2002 passed by the District Judge, Gadag in R.A.No.24/2000.

2. For the sake of convenience, the parties will be referred to by their ranking before the trial Court.

3. The brief facts of the case are that: plaintiff filed a suit before the trial Court seeking for the relief of specific performance of contract dated 31-3-1990 and permanent injunction in respect of the suit schedule property bearing TMC No.412 situated at Ward No.4, Gajendragad town, Ron Taluk. The case of the plaintiff is that the defendant entered into an agreement to sell the suit property which is consisting of two shops and zinc sheet shed and open space behind them with compound for a sum of Rs.1,80,000/- and receive Rs.1,20,000/- towards earnest money and executed agreement of sale Ex.P.1 on 30-3-1990. Thereafter the defendant executed registered sale deed Ex.P.4 in respect of southern half portion of the said property for a sum of Rs.95,000/- on 9-8-1990. The defendant thereafter collected from plaintiff now and then the entire balance amount of Rs.60,000/- in respect of original agreement of sale and executed document Ex.P5 dated 28-5-1991 and gave possession of the suit property to the plaintiff. The plaintiff is running cement business in the suit property; that the defendant obstructed with the plaintiff’s peaceful possession and enjoyment of the suit property and had advertised to sell the same to third parties. That the plaintiff also issued a public notice dated 10-8-1992 cautioning the public not to purchase the suit property. He also issued legal notice to the defendant dated 13-8-1992 to execute a sale deed in respect of suit property in his favour. In suite of receipt of notice, defendant failed to comply the same nor gave any reply. That he has paid the entire sale consideration amount to the defendant and has performed his part of contract and he is ready and willing to get the sale deed executed in his favour. Hence he filed the suit.

4. On appearance before trial Court, defendant filed written statement contending that agreement of sale dated 30-3-1990 is only a security deed for the loan borrowed by him from the plaintiff and was not intended to acted upon and the sale deed dated 9-8-1989 was also executed as a security for the amount borrowed; that the actual possession of the suit property was not given to the plaintiff; that on 28-5-1991 the plaintiff paid some amount to defendant and obtained his signature on some papers saying that they are security for the amount paid. That the suit property is in his possession and he is enjoying the same. That he is residing in the first floor of the suit premises and he has no intention to sell the same; that he has no other property for his residence; that due to financial difficulties, he executed the alleged agreement of sale. That the suit property values more than Rs.10 lakh, as such, if the specific performance is ordered, he will be put to great hardship and injury. Hence, prayed to dismiss the suit of the plaintiff.

5. The trial Court, on the basis of pleadings of the parties, framed in all, six issues. In support of the case of the plaintiff, plaintiff examined himself as P.W.1 and also examined three more witness as P.Ws.2 to 4 and documents Exs.P-1 came to be marked. On the other hard, defendant examined himself as D.W.1 and also examined another witness as D.W.2. However, no documents were marked on his behalf. The trial Court, after going through the entire material placed before