Point of Law: When there was a non-alienation clause and entire sale consideration is paid, question of readiness and willingness to pay balance consideration money is not of much importance.

JUDGMENT :

These matters are listed for admission today. Heard the learned counsel for the appellant and the learned counsel for the respondent after securing the TCRs.

2. R.S.A.No.1082/2022 is filed challenging the judgment and decree dated 05.03.2018, passed in O.S.No.160/2012, wherein the suit filed for the relief of permanent injunction by the original owner is decreed with cost restraining the defendant from interfering over the suit schedule property and the judgment and decree dated 04.01.2022 passed in R.A.No.26/2018 confirming the judgment of the Trial Court.

3. R.S.A.No.1087/2022 is filed against the dismissal of the suit filed by the plaintiff, who is an agreement holder and power of attorney holder, dated 16.12.2017 passed in O.S.No.191/2012 and the same is confirmed by the First Appellate Court by its judgment and decree dated 04.01.2022 passed in R.A.No.5/2018.

4. The plaintiff in O.S.No.160/2012 in the plaint has contended that the suit schedule property bearing Sy.Nos.94 and 95 measuring 2 acres 9 guntas situated at Kirugadalu Village was granted to the plaintiff on 08.11.1978. As per the grant, khatha has been changed in the name of the plaintiff and from the date of grant, the plaintiff is in possession and enjoyment of the suit schedule property. The defendant has created some documents and trying to interfere with the plaintiff’s possession and also tried to destroy the crops standing in the schedule property and hence without any alternative, the plaintiff was constrained to file the suit for the relief of permanent injunction. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that he had entered into the agreement of sale with the plaintiff on 03.07.1987. On the date of agreement itself, the possession of the suit schedule properties was delivered to the defendant and thereafter the defendant had handed over the possession to his brother and his brother is in possession of the suit schedule property. Even though the plaintiff is not in possession of the suit schedule property, he has filed the frivolous suit only to dispossess the defendant from the schedule property and to harass the defendant.

5. Based on the pleadings of the parties, the Trial Court framed the issues in a suit for bare injunction. The plaintiff in order to prove his case examined four witnesses as P.W.1 to P.W.4 and got marked the documents at Exs.P.1 to 21. The defendant examined one witness as D.W.1 and produced 51 documents as Exs.D.1 to 51 and also examined three witnesses as D.W.2 to D.W.4. The Trial Court having considered both oral and documentary evidence placed on record, decreed the suit against the defendant and hence the defendant filed an appeal in R.A.No.26/2018, wherein it is contended that the possession is with the defendant consequent upon the sale agreement and the Trial Court failed to appreciate the material on record. The First Appellate Court on considering the grounds urged in the appeal memo, formulated the points whether the plaintiff proves that he is in possession and enjoyment of the suit properties as on the date of the suit and the alleged interference by the defendant and whether the plaintiff is entitled for the relief of permanent injunction. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and hence R.S.A.No.1082/2022 is filed before this Court.

6. The main contention of the learned counsel for the appellant in this second appeal is that both the Courts failed to take note of the sale agreement and though the defendant denied the very execution of the sale agreement, admitted in the connected suit that they have executed the sale agreement and inspite of it, the Trial Court committed an error and also fails to take note of the document of sale agreement and power of attorney and also the witnesses who have been examined as D.W.1 to D.W.4. P.W.2 categorically admitted that the appellant