These two appeals and cross objection arise out of the order passed by the Fast Track Court, Bellary in RA 133/2008 and 134/2008 which arises out of the common order passed by the II Addl. Civil Judge, (Sr.Dvn.), Bellary in OS 97/2005 and 420/2005. Parties are referred to as per the reference made in this appeal as appellants and respondent.

Respondent Venkateshulu/plaintiff has filed cross objection 54/2010 in RSA 5244/2010. Two appeals are filed by the appellants who is the agreement holder in respect of the suit property which is said to be a house which was allotted to the respondent. Initial deposit of Rs.5,000/-was to be paid and thereafter the agreed installments to be paid by the lessee/purchaser i.e., the respondent. It appears, after allotment in favour of the respondent by the Karnataka Housing Board (KHB for short) way back in the year 1989, there was an agreement entered into between the plaintiff and the defendant i.e., appellant and the respondent. Appellant / Lalithamma filed a suit for specific performance in OS 420/2005 subsequently on filing of the suit for declaration and possession by the respondent/plaintiff in OS 97/2005. According to the appellant, in respect of the house property which was allotted in favour of the respondent by the KHB, as the respondent was a driver in profession he could not take care of the property and also to stay in the house, appellant having paid a consideration of Rs.9,000/-to the respondent, having occupied the property went on paying the installments till conclusion. However, the case of the respondent is, he was paying the installments, there is also an admission of the husband of the appellant herself in some other proceedings with respect to payment of installments in the suit filed by this respondent against some other person for injunction. Accordingly, stating that it is the respondent who has paid the installments and accordingly, after completion of the period of non-alienation, though a sale agreement was executed, after the year 2000 (date of last installment paid), this appellant ought to have come and got executed the sale deed within three years thereafter. However, she filed a suit for specific performance in the year 2005 as such, the suit is not maintainable. With this contention, defendant filed written statement in OS 420/2005. In OS 97/2005 the stand of the respondent is, since he was moving from place to place, he had given possession of the property on such execution of the sale deed by the KHB on payment of last installment. When he filed a suit for declaration and possession, as a counter blast appellant has filed a suit for specific performance. Both the courts below having held that suit is barred by limitation, dismissed the suit of the plaintiff/appellant and decreed the suit filed by the respondent.

The suit filed by the appellant herein for specific performance and also the suit filed for declaration before the trial court, both were clubbed together and thereafter evidence was let in. Referring to various decisions of the Apex Court and also the legal position, the trial court although held that appellant is in possession of the suit property but on the point of limitation, non-suited this appellant and ordered for declaration and for delivery of possession in favour of the respondent.

As per the finding of the courts below regarding possession is concerned, it is held to be in possession of this appellant. So far as payment of installments is concerned, as per the contention of the respondent – cross objector, it is he who paid as is admitted by the husband of the appellant herself as such, admitted fact need not be proved even though it is in a different proceeding and accordingly contended, the finding of both the courts below regarding payment of installments has to be reversed. With these pleadings, parties are before this Court.

The finding of both the courts below in respect of possession is, it is in the hands of the appellant