In a suit for specific performance, the plaintiff must prove the agreement, payment of consideration, and possession of the property.

JUDGMENT :

P.S. Dinesh Kumar, J.

This appeal by the defendant No.1 is directed against the judgment and decree dated March 23, 2013 in O.S. No. 641/1994 passed by the learned VII Addl. City Civil and Sessions Judge, Bangalore, decreeing the suit for specific performance of contract.

2. For the sake of convenience, parties are referred as per their status before the Trial Court.

3. We have heard Shri. Uday Holla, learned Senior Advocate for the defendant No.1/appellant and Shri. Shashi Kiran Shetty, learned Senior Advocate for the plaintiff No.1/respondent No.1 and Shri. Ramesh Kulkarni, learned Advocate for respondent No.2 (a to d) and Shri.S.P.Shankar, learned Senior Advocate for respondent No. 2 (e) and Shri. Madhusudhan Rao and Shri. Sharath Kumar Shetty, learned Advocates for proposed impleading Applicants.

4. As per plaint averments, first plaintiff is an agriculturist. He entered into an agreement with first defendant, a registered public charitable Trust (hereinafter referred to as ‘Trust’) which owns a large tract of agricultural property. Second defendant is the Chairman and third defendant is the Power of Attorney [1‘P.A. Holder’ for short] holder for the Trust. Out of about 500 acres, 168.06 acres is a subject matter of the agreement. First plaintiff and the Trust initially entered into an ‘Agreement to Sell’ dated 20.03.1982, whereunder first plaintiff had agreed to obtain the permission under Karnataka Land Reforms Act, 1961 and the Urban Land Ceiling and Regulation Act, 1976. Due to some complexities, he could not obtain the same and an 'Amended Sale Agreement' dated 25.07.1982 was entered into, whereunder the Trust had agreed to obtain the permissions. First plaintiff, in all, paid an advance sale consideration of Rs.16,37,000/-. The consideration agreed between the parties was Rs.17,500/-per acre. First plaintiff was always ready and willing to pay the balance consideration and get the Sale Deed registered in his favour. The Trust failed to obtain the necessary permissions. While agreements were subsisting, the Trust sought to alienate the property compelling first plaintiff to bring the instant suit for specific performance.

5. The Trust resisted the suit by filing written statement denying the plaint averments and contending inter alia that first plaintiff is an Real Estate Agent and not an agriculturist. Third defendant namely, Birdhichand Chowdhary (hereinafter referred to as ‘Birdhichand’) was not the P.A. Holder of the Trust; that he was not in service with effect from 05.07.1982, therefore, defendant No.3 could not have been authorized to execute any agreement. Birdhichand had executed the agreement in his individual capacity without approval from the Trust.

6. Defendants No. 3 to 7 have been placed ex-parte. They have not filed written statements.

7. Based on the pleadings, the Trial Court has framed following eight issues and four additional issues:

1) Whether plaintiff proves that defendant No.3 as G.P.A of first defendant-Trust executed the suit agreement of sale dated 20.03.1982 and 25.07.1982 to sell the suit property?

2) Whether plaintiff had paid amount of Rs.16,37,000/-as part consideration to the first defendant through third defendant?

3) Whether plaintiff was put in possession of schedule property in part performance of contract?

4) Whether plaintiff has been ready and willing to perform his part of contract?

5) Whether plaintiff is entitled for the relief of specific performance of contract against defendants No.1 & 2?

6) Whether in the alternative, the plaintiff is entitled for the refund of amount claimed?

7) Whether plaintiff is entitled for the relief of injunction prohibiting the defendants from alienating suit property?

8) To what order or decree, the parties are entitled?

Addl. Issues:-

1) Whether the suit is barred by law of limitation?

2) Whether suit is not maintainable as suit sale agreement is void ab-initio as pleaded in para-5 of written statement of first defendant?

3) Whether the suit is liable