JUDGMENT :

H.P. Sandesh, J.

This appeal is filed by the 2nd defendant who is the subsequent agreement holder, challenging the judgment and decree passed in O.S. No.2666/2000 dated 17.01.2011 on the file of XXVII Additional City Civil Judge (CCH-9), Bengaluru granting the decree for specific performance in favour of the plaintiff.

2. The parties are referred in the original ranking for the convenience of the Court in order to avoid the confusion.

3. The brief facts of the case are that; defendant No.1 was allottee of the suit schedule property under Lease-cum-Sale Agreement executed by defendant No.3 dated 21.07.1989 under the registered document. Accordingly, defendant No.1 was put in possession of the suit schedule property on 21.07.1989 by issuing Possession Certificate. It is the case of the plaintiff that defendant No.1 negotiated with the plaintiff to sell the same and it was agreed to sell for sale consideration of Rs.1,60,000/-. The first defendant has received Rs.75,000/- in cash as advance sale consideration. 'Defendant No.1 had executed an agreement of sale on 15.07.1993 in favour of the plaintiff and he undertook to produce all the original documents and to register the sale deed in favour of the plaintiff. He also pleaded that he is in urgent need of money. The plaintiff also has executed Mortgage Deed dated 03.09.1993 through a registered document and delivered the possession and so also executed a General Power of Attorney in favour of the plaintiff on 03.05.1994. The plaintiff also moved office of the 3rd defendant and conditional sale deed was executed by 3rd defendant in favour of 1st defendant with the efforts of the plaintiff and plaintiff only has incurred all expenses. It is also contended that one K.Shanthamma filed a suit against defendant No.1 in the capacity of GPA holder of defendant No.1 and plaintiff contested the said suit in O.S.No.11029/1993. The said suit was concluded by virtue of Agreement of Settlement dated 08.12.1993. It is also the case of the plaintiff that defendant No.1 received Rs.20,000/- from the plaintiff on 22.04.1994 and executed another agreement of settlement on the same date. In the agreement of settlement, defendant No.1 confirmed that he has received the entire sale consideration and agreed to execute the sale deed.

4. Though the plaintiff was ever ready and willing to perform his part of contract to get execution of the sale deed, defendant No.1 went on postponing the same. Defendant No.1 has also executed Indemnity Bond on 28.04.1997 confirming the said transaction, even defendant No.1 requested to pay extra amount of Rs.25,000/- and the same was also paid. In that regard, document was also executed. The plaintiff already put in possession and he has been in possession and enjoyment of the schedule property. He has invested huge funds and constructed the structure therein. In spite of it, defendant No.1 did not come forward to execute the sale deed after expiry of lease period. When the plaintiff has obtained Encumbrance Certificate, found that defendant No.1 has executed registered sale agreement in favour of defendant No.2 on 28.10.1998 and the same was shocked. He gave the notice against them on 30.11.1999 calling upon the defendant No.1 to execute the sale deed. In spite of service of notice, they are not turned up and also not replied. Hence, without any other alternative, the plaintiff has filed the suit.

5. In pursuance of suit notice, defendant Nos.1 to 3 appeared before the trial Court. Defendant Nos.1 and 2 have filed written statement and defendant No.3 did not file any written statement.

6. Defendant No.1, in the written statement, admitted the execution of Lease-cum-Sale Agreement in respect of suit schedule property by the 3rd defendant. But, he denied the execution of sale agreement in favour of the plaintiff and receipt of entire sale consideration and denied all other documents. However, he was pleaded that he has executed the sale agreement in favour of defendant