JUDGMENT :

This Regular Second Appeal is filed by the plaintiff, challenging the Judgment and Decree dated 29th November, 2007 passed in Regular Appeal No.111 of 2003 on the file of the II Additional Civil Judge (Sr. Dn.), Dharwad, confirming the Judgment and Decree dated 13th March, 2003 in Original Suit No.51 of 1997 on the file of the Principal Civil Judge (Jr. Dn.) and Principal JMFC at Dharwad, decreeing the suit in part.

2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.

3. It is the case of the plaintiff that the defendant No.1 is the owner of the property bearing survey No.20/A/1A/1B2/A/1A of Kamalapura Village, Dharwad. Defendant No.2 is the son of defendant No.1. It is further averred that the defendant No.1 was intending to purchase an alternative property at Hombardi village of Haveri Taluk and as such, he intended to sell six guntas of land for total consideration of Rs.9,000/-; and as such, the plaintiff paid Rs.3,000/- as advance on 28th August, 1974 and executed the agreement of Sale. It is also averred that the defendant No.1 delivered the possession of the property in question to the plaintiff. Again on 30th September, 1974, defendant No.1 entered into an agreement to sell eight guntas of land and as such, received Rs.13,000/- in advance. It is further stated in the plaint that defendant No.1 has received a total amount of Rs.16,000/- as advance to sell the suit schedule property i.e. six guntas plus eight guntas. It is further averred in the plaint that plaintiff was ready and willing to pay the balance amount for execution of the registered sale deed, however, the rider in the sale agreement was that the defendants have to obtain permission from the government to sell the suit schedule property. The plaintiff approached defendants on several occasions, however, the defendants postponed the execution of the registered sale deed and as such, the plaintiff caused notice dated 14th December, 1996 to the defendants for which defendants have not responded. Hence, the plaintiff filed suit seeking specific relief of agreements dated 28th August, 1974 and 30th September, 1974.

4. On service of notice, defendants entered appearance and filed detailed written statement. Defendants contended that the suit is barred by limitation and further stated that the plaintiff failed to pay the balance amount within the reasonable period and as such, the defendant cancelled the agreement of sale referred to above, inter alia, sought for dismissal of the suit.

5. Based on the pleadings on record, the trial Court framed issues for its consideration. In order to prove the case, plaintiff has examined four witnesses as PW1 to PW4 and produced 28 documents and same were marked as Exhibits P1 to P28. On the other hand, defendant No.2 was examined as DW1 and has not produced any document. The trial Court, after considering the material on record, by its Judgment and Decree dated 13th March, 2003, decreed the suit in part, directing the defendants to refund the earnest money of Rs.16,000/- with six percent interest from the date of agreement of sale and also directed to pay damages of Rs.5,000/- to the plaintiff within six months from the date of the Judgment and Decree. Being aggrieved by the same, the plaintiff preferred RA No.111 of 2003 before the First Appellate Court and same was resisted by defendants. The First Appellate Court, after considering the material on record, dismissed the appeal, consequently, Judgment and Decree in Original Suit No.51 of 1997 was confirmed. Being aggrieved by the same, the plaintiff has preferred this Second Appeal.

6. This Court, vide order dated 15th September, 2009, framed the following substantial questions of law:

(i) Whether the Courts below were justified in refusing the decree of specific performance even after rendering a finding with regard to the execution of sale agreements dated 28.08.1974 and 30.09.1974 and also the con