Point of law: In a case where plaintiff come forward to seek a decree for specific performance of a contract of sale of immovable property on basis of an oral agreement or a written contract, heavy burden lies on plaintiff to prove that there was consensus ad idem between parties for concluded agreement for sale of immovable property.

JUDGMENT :

This is a defendants’ appeal. The present respondent as a plaintiff had instituted a suit against the present appellants, arraigning them as defendants in O.S.No.53/2014, in the Court of the learned Senior Civil Judge & JMFC, K.R. Nagar (hereinafter for brevity referred to as “the Trial Court”), seeking for specific performance of the contract, by directing the defendant No.1 to execute a regular Sale Deed in favour of the plaintiff and getting it registered in respect of the suit schedule property and to deliver the possession and other reliefs.

2. The summary of the plaint of the plaintiff in the Trial Court (the present respondent) is that, on the date 07-08-2014, the first defendant (first appellant herein), for her legal necessities, i.e. to clear the old loan and for performance of the marriage of her daughter, entered into an agreement for sale of suit schedule property with the plaintiff, agreeing to sell the said property bearing Survey No.226/1, measuring 01 Acre 14 Guntas, situated at Arjunahally Village, Hosa Agrahara Village, K.R.Nagara Taluk, for a total sale consideration of a sum of Rs.12,42,000/-. Under the said agreement, on the same day, the first defendant received a sum of Rs.1,25,000/-as an advance amount in the presence of the witnesses and agreed to receive the balance sale consideration amount at the time of executing the registered Sale Deed, which Sale Deed she agreed to execute and register whenever she was called upon to do so. She also agreed to get the survey sketch, encumbrance Certificate and other documents which were required for registration, at the earliest.

It is further the case of the plaintiff before the Trial Court that, the first defendant, after executing an agreement for sale in favour of the plaintiff, with an intention to defeat the claim of the plaintiff, executed another registered sale agreement dated 22-08-2014 in favour of defendant No.2 -Sri. Subbanaika (appellant No.2 herein) with respect to the very same property and another property bearing Survey No.227/2 measuring 0.15 Guntas for a total sale consideration of a sum of Rs.5,63,000/-and thus the conduct of the defendant No.1 was to cheat the plaintiff.

It is also the case of the plaintiff that, once again, within a month i.e. on the date 09-09-2014, the defendant No.1 executed another registered Release Deed in favour of the defendant No.2, who is none other than her own brother, for the same consideration amount of Rs.5,63,000/-.

The plaintiff has further stated that she has always been ready and willing to perform her part of the promise under the contract by paying the balance sale consideration amount and to obtain the registered Sale Deed in her favour. The plaintiff has stated that on the date 09-09-2014, she demanded the defendant No.1 to execute a registered Sale Deed in her favour by receiving the remaining consideration amount, for which, the defendant No.1 orally stated that, she had already executed a Release Deed in favour of her brother. Then the plaintiff approached the Sub-Registrar’s Office and found that defendant No.1 had registered a Sale Deed and also a Release Deed in favour of the defendant No.2. The plaintiff, once again, approached the defendant No.1, asking her to execute the Sale Deed by taking the balance sale consideration, however, the said request and demand was refused by the said defendant No.1. This made the plaintiff to cause a legal notice dated 17-09-2014 upon the defendant No.1, calling upon her to execute a registered Sale Deed as per the agreement for sale dated 07-08-2014.

3. Despite service of notice upon her, the defendant No.1 did not reply to the said legal notice, which constrained the plaintiff to institute the suit in question against the defendants for the relief of specific performance.

4. In response to the summons served upon them, both the defendants appeared through their counsel and filed their Written Statement, in which, they denied the whole plaint averments.

Th