The courts upheld that an agreement for the sale of property without the seller's title cannot be enforced, but the plaintiff is entitled to a refund of consideration paid.

KKJJUjudg

JUDGMENT :

V. SRISHANANDA, J.

Heard Sri. H.P Mahadevaswamy, learned counsel for the appellant, Sri. M. Krishnappa, learned counsel for Caveator/respondent No.2 and Sri. Yashwanth Nethaji N.T. for Sri. K.V. Narasimhan, learned counsel for respondent No.10.

2. Appellant is the agreement holder in respect of the immovable property bearing Sy.No.79/2 measuring 1 acre 10 guntas situated at Hinkal Village, Kasaba Hobli, Mysore Taluk, bounded on the East by : Land of Mojjaiah and Karali Bolaiah, West by : Land of Malluraiah, North by : Land of Bolaiahna Mariyamma and on the South by : Land of Chikkamma.

3. There was a refusal to execute the sale deed by the first defendant and after exchange of notices, suit came to be filed for specific enforcement of the agreement to sell dated 02.02.1996. Suit on merits came to be dismissed holding that even though agreement, consideration, readiness and willingness came to be proved by the plaintiff, the land which was subject matter of the agreement was not belonging to the first defendant, suit was dismissed.

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4. An appeal came to be filed before the First Appellate Court by the unsuccessful plaintiff in RA No.173/2019.

5. The learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and after re-appreciation of the factual and legal aspects, dismissed the appeal and decree of dismissal passed in O.S.No.62/2002 was confirmed.

6. Thereafter, the present appeal is filed by the unsuccessful plaintiff on the following grounds:

It was highly erroneous on the part of The First Appellate Court when it held that the documents produced by Plaintiff/Appellant did not establish the factum of handing over of physical possession of plaint schedule property to the Plaintiff/Appellant. The findings and observation of The Hon'ble First Appellate Court as well as The Hon'ble Trial Court are perse erroneous and devoid of sound judicial principles.

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The Hon'ble First Appellate Court in unequivocal terms held that Plaintiff/Appellant succeeded in proving Exhibits P1 and P2 i.e., Registered Agreement to sell dated 02-02-1996 and further agreement dated: 20-07-1996 respectively. The Hon'ble First Appellate Court concurred with findings of The Hon'ble Trial Court in accepting Execution of Ex. P1 and P2. However, overlooked to appreciate that in Ex. P2 proven agreement comprised profound element of handing over of seisin/physical possession of plaint schedule property in the name and favour of Plaintiff/Appellant. In the presence of such findings, The Hon'ble First Appellate Court ought to have answered points for consideration in affirmative. Likewise, The Hon'ble Trial Court ought to have answered additional Issue No. 2 in affirmative rather partly affirmative. The findings of The Hon'ble First Appellate Court as well as Trial Court are in dichotomy and contract.

It was highly erroneous on the part of The First Appellate Court when it held that Defendants No.1 to 3/Respondents No.1 to 3 did not have right to enter into agreement to sell with Plaintiff/Appellant. The Hon'ble First Appellate Court lost sight in visualizing prolific and profound factual and legal propositions which added impregnable fillip to the claim of the Plaintiff and Ex. P1 and P2. Mysore Urban Development Authority issued notification of acquisition in the year 1984. The Plaint schedule property was vested with the Government when notification of acquisition was formulated by MUDA. Therefore, plaint schedule property was not Beelu at the time of execution of Ex, P1 and P2. The tag of Beelu attached to plaint schedule property got evaporated and decimated the moment dominion of plaint