JUDGMENT :

S. SUJATHA, J.

This appeal is directed against the judgment and decree dated 06.06.2011 passed in O.S.No.729/2008 on the file of the II Additional Senior Civil Judge, Mysore (‘Trial Court’ for short), whereby the suit of the plaintiff has been decreed in part with costs.

2. The parties are referred to as per their status before the Trial Court for the sake of convenience.

3. The plaintiff instituted O.S.No.729/2008 against the defendants seeking for the relief of specific performance of contract based upon the agreement of sale dated 15.05.2006. The suit property is the dry land bearing Sy.No.254/2, measuring 3 acres out of total extent of 4 acres 26 guntas situated at Hanchya Village, Kasaba Hobli, Mysore Taluk. The plaint averments are that the defendants are the owners of the suit property and the same is their ancestral property. They had offered to sell the same in favour of the plaintiff for a valuable consideration of Rs.9,40,000/- per acre, totally amounting to Rs.28,20,000/-. The plaintiff has agreed to purchase the same. Accordingly, the plaintiff and defendants entered into sale agreement on 15.05.2006 and the defendants had received a sum of 2,50,000/-from the plaintiff through a cheque drawn at Karnataka Bank, Bannur Branch towards advance amount with a covenant that the balance sale consideration amount shall be paid at the time of registration of absolute sale deed before the Sub-Registrar. It was agreed that the defendants shall execute the sale deed within five months from the date of they obtaining clear saleable title viz., No Objection Certificate, Survey Sketch from Taluk Office by fixing boundary stones with all other relevant documents which are necessary for registration. It was contended that subsequent to executing the agreement of sale, the plaintiff had approached the defendants and enquired about the compliance on the part of obtaining necessary documents from the Revenue Authority and demanded to execute the registered sale deed by receiving balance sale consideration of Rs.25,70,000/-as agreed thus expressing his readiness and willingness. However, the defendants failed to execute the registered sale deed. The plaintiff has caused notice expressing his readiness and willingness to perform his part of contract. Despite the same, the defendants did not come forward to execute the sale deed, but caused an evasive reply. Though it was assured by the defendants to execute the sale deed in the panchayath conveyed, but they failed to keep up the promise. On the other hand, the defendants are making efforts to sell the suit property in favour of third parties. Hence, the relief of specific performance of contract was sought by filing the suit.

4. In response to the suit summons, the defendants appeared and filed their written statement contending that the suit property is ancestral property of the defendants and they are the owners of the same, denying the sale price of Rs.9,40,000/-per acre, totally amounting to Rs.28,20,000/-. The execution of the sale agreement dated 15.05.2006 was admitted. It was contended that the plaintiff had requested the defendants, five months time to secure the balance consideration amount but has not come forward to pay the balance amount to get the registered sale deed executed. As on the date of issuance of legal notice by the plaintiff on 20.10.2006, the period of five months had expired, the plaintiff has failed to discharge his part of obligation. As such, the defendants are entitled to forfeit the advance amount. Hence, prayed for dismissal of the suit.

5. Based on the pleadings, the following issues were framed:-

(1) Whether the plaintiff proves that the defendant Nos.1 to 5 being the owners of suit schedule property have agreed to sell suit schedule property for a sum of Rs.28,20,000/-and executed sale agreement on 15.05.2006?

(2) Whether the plaintiff proves that he is always ready and willing to perform his part of contract?

(3) Whether the plaintiff is entitled