The plaintiff must prove the oral agreement of sale and provide convincing evidence of possession and payments to enforce a sale deed.

JUDGMENT

P.Krishna Bhat, J. - Being aggrieved by the judgment and decree dated 18.10.2019 passed by the learned Principal Senior Civil Judge and CJM, Vijayapur dismissing R.A.No.25/2017, confirming the judgment and decree dated 13.04.2017 passed by the learned IV Additional Civil Judge, Vijayapur, dismissing O.S.No.451/2008, the plaintiff has preferred the present second appeal under Section 100 of the Code of Civil Procedure, 1908.

2. During the course of this judgment, for the sake of convenience, parties will be referred to as per their ranks before the learned Trial Court. Plaintiff is the appellant herein. Respondent No.1 was defendant No.1 and respondent No.2 was defendant No.2.

3. Plaintiff filed O.S.No.451/2008 seeking direction to defendant Nos.1 and 2 to execute a registered sale deed in favour of the plaintiff in respect of the suit properties after receiving balance consideration amount of Rs.50,000/- from the plaintiff and also for a consequential relief of permanent injunction, restraining defendant Nos.1 and 2 from obstructing the peaceful possession, enjoyment and wahiwat of the plaintiff over the suit properties. The suit properties mentioned in the prayer of the plaint is merely described as Survey No.196/1/2 measuring 3 acres assessed at 1 rupee 50 paise and Survey No.196/2A measuring 2 acres 6 guntas assessed at 1 rupee 14 paise, both situated at Aliyabad village, taluka and district Vijayapur. It is relevant to notice that no boundaries of the properties have been furnished in the plaint.

4. Case of the plaintiff is that on 25.12.1994, defendant No.1 and his mother Shankrewwa who passed away on 05.06.2006 came up with a proposal to sell the suit properties claiming to be in need of money for their family necessity. Plaintiff agreed to purchase the suit properties for Rs.3,00,000/- and defendant No.1 and his mother agreed to sell the suit properties for the said consideration to the plaintiff and in the presence of witnesses Sri G.A.Rathod, Sri L.D.Chawan, Sri B.M.Chawan and Sri R.V.Rathod (PW.2) an oral agreement of sale was entered on 25.12.1994. Plaintiff's further case is that pursuant to the oral agreement of sale, plaintiff paid Rs.1,00,000/- to defendant No.1 and his mother Shankrewwa as earnest money on 25.12.1994 and defendant and his mother handed over possession of the suit properties to the plaintiff on the same date itself. Plaintiff has further asserted that on 28.03.2003 defendant No.1 and his mother received a further sum of Rs.1,50,000/- and passed a receipt dated 28.03.2003 (Ex.P1) in the presence of witnesses admitting therein receipt of Rs.1,00,000/- on 25.12.1994 and Rs.1,50,000/- on the date of Ex.P1. He has claimed further that thereafter he made several requests with defendant No.1 and his mother for executing regular sale deed after receiving balance consideration amount of Rs.50,000/-. According to him, defendant No.1 and his mother went on postponing the execution of the sale deed for some reason or the other and even after the death of the mother of defendant No.1 on 05.06.2006, plaintiff had continued to make requests but without success. It is further alleged by him that he had made several improvements in the land pursuant to taking possession of the suit properties on 25.12.1994 and he had even dug a well and finally on 21.06.2008 defendant No.1 registered a bogus sale deed in favour of defendant No.2 and on account of the same, he had issued a legal notice to defendant Nos.1 and 2 and thereafter filed the suit in O.S.No.451/2008.

5. Defendant Nos.1 and 2 have filed their separate written statements and defendant No.1 in particular has denied the oral agreement of sale on 25.12.1994; handing over the possession of the suit properties to the plaintiff; receipt of part of the consideration on 25.12.1994; and similarly on 28.03.2003. He has also asserted in his written statement that Ex.P1 was a forged document and neither himself nor his mother had either signed the same or affi