To establish a claim for specific performance, the plaintiff bears the burden of proving the authenticity of the contract, which was found lacking in this case.

JUDGMENT :

M.G.S. KAMAL, J.

This appeal is by the unsuccessful plaintiff, who is before this Court being aggrieved by the judgment and decree dated 18.08.2017, passed in O.S.No.419/2009, on the file of Principal Civil Judge and J.M.F.C., Channarayapatna, ('trial Court' for short), which is confirmed by judgment and decree dated 27.11.2018, passed in R.A.No.35/2017, on the file of Senior Civil Judge and J.M.F.C., Channarayapatna.

2. The above suit in O.S.No.35/2017 is filed by the plaintiff seeking the relief of specific performance of contract of sale of the suit schedule property.

3. It is the case of the plaintiff that the defendant No.1 is the owner of the suit schedule property, who is well acquainted with the plaintiff. That the plaintiff has been residing in a house existing on the suit schedule property along with her family for more than fifteen years as a tenant under the defendant No.1. That in the month of November 2003, the defendant No.1 expressed his desire to sell the suit property including the house situated therein for his legal necessities. After negotiations, the price was fixed at Rs.80,000/- and on 20.11.2003, an Agreement of Sale was executed by defendant No.1 in favour of the plaintiff agreeing to convey the suit property. The plaintiff paid Rs.50,000/- by way of cash and adjusted Rs.10,000/- towards advance, which was paid under the tenancy and agreed to execute the Sale Deed by receiving the balance sale consideration of Rs.20,000/-.

4. That though, the plaintiff was ready and willing to complete the transaction, however, since there was interference by one Shivanna with the lawful possession of the plaintiff, she was constrained to file a suit in O.S.No.99/2005, which came to be decreed. That the plaintiff thereafter got issued a notice dated 19.04.2008 calling upon the defendant No.1 to receive the balance sale consideration and to execute the Sale Deed. Since there was no response, the present suit for specific performance of the contract was filed by the plaintiff.

5. The defendant No.1 appeared through his counsel and filed his written statement. Defendant No.2 got impleaded in the suit and also filed his written statement. The case of the defendants is that defendant No.1 is no more the owner of the suit property as on the date of filing the suit as he had already sold the property in favour of defendant No.2. Denying the averments of the plaint, it is contended that the present suit is filed based on a Sale Agreement, which is a created and fabricated document and is vitiated by fraud. It is contended that the recitals of the plaint in O.S.No.99/2005 and the recitals of the plaint in the present suit are entirely different from each other. That defendant No.1 had issued a befitting reply to the notice issued by the plaintiff. That the suit is not maintainable. Hence, sought for dismissal of the suit.

6. Defendant No.2 on the other hand has contended that the suit having barred by limitation, required to be rejected under Order VII Rule 11 of Code of Civil Procedure. It is further contended that the tenancy was attorned by virtue of Sale Deed. That defendant No.1 being the lawful owner of the property, has sold the same in favour of defendant No.2 on 31.03.2004 for valuable consideration. That he had issued a notice dated 09.05.2006 terminating the tenancy and calling upon the plaintiff to vacate and hand over the possession of the suit property. That defendant No.2 had filed a suit in O.S.No.119/2006 for the relief of possession and in the said suit had filed an application calling upon the plaintiff to produce the Agreement of Sale, which was not produced by the plaintiff. That since the document is a created one for the p