Appellate courts must uphold trial court findings unless explicitly challenged; sales during ongoing litigation violate the principle of lis pendens.

JUDGMENT :

UMESH M. ADIGA, J.

1. The plaintiff has preferred this second appeal under Section 100 of Code of Civil Procedure challenging the judgment and decree dated 16.06.2008 passed by the District Judge (C/c of Fast track Court), at Chickballapur (for short 'First appellate Court') in R.A.No.141/2003.

2. The brief facts of the case of the plaintiff/appellant are that defendant No.1 was the absolute owner of the suit property and he intended to sell the same and he executed an agreement of sale in favour of the plaintiff dated 16.05.1996, agreeing to sell the suit property for Rs.35,250/- and received an amount of Rs.20,000/- as earnest money and had executed written agreement in this regard. It was agreed between the parties that whenever plaintiff calls upon the defendant, he shall execute registered sale deed by receiving balance amount of sale consideration. It is further averred in the plaint that plaintiff time and again requested the defendant No.1 to execute Registered Sale Deed, after receiving balance amount of sale consideration. But defendant No.1 went on postponing to execute the registered sale deed on one or the other pretext. Hence, the plaintiff was constrained to file the suit. With these reasons, plaintiff prayed to grant the decree of the relief of specific performance of the contract/agreement dated 16.05.1996.

3. The defendant No.1 denied the plaint averments and he denied execution of alleged agreement of sale deed dated 16.05.1996 and receipt of Rs.20,000/- as earnest money. He also denied that plaintiff requested him to execute the sale deed by receiving balance of sale consideration. According to contention of defendant No.1, he sold the suit property in favour of defendant No.2 as per the agreement of sale dated 30.03.1996 executed by him in favour of defendant No.2 and delivered possession of the property in favour of defendant No.2. Therefore, defendant No.1 was not at all the owner of the property as on the date of filing of the suit. With these reasons prayed to dismiss the suit.

4. From the rival contentions of the parties, the trial Court framed the following issues:-

"i. Whether the plaintiff proves that the defendant had executed agreement of sale in respect of schedule property and received advance of Rs.20,000/- in total consideration of Rs.32,250/-?

ii. Whether the plaintiff proves that the was ready and willing to perform his part of the contract?

iii. Whether the 2^nd defendant proves that he is a bonafide purchaser?

iv. Whether the plaintiff is entitled for the relief sought in the suit?

v. What order or decree?"

5. The trial Court recorded the evidence of both the sides. Plaintiff examined 4 witnesses as PW-1 to PW-4 and marked Exs-P1 to P4. Defendant No.1 examined 6 witnesses as DW-1 to DW-6 and marked 3 documents as per Exs-D1 to D3.

6. The trial Court after hearing the arguments and appreciating the pleading and evidence on record, answered issue Nos.1 to 3 in the affirmative, issue Nos.4 and 5 partly in the affirmative, and partly decreed the suit. The trial Court rejected the relief of specific performance of agreement dated 16.05.1996 and the trial Court granted the relief of refund of earnest money with interest at the rate of 6% per annum from the date of execution of the agreement of sale, till its realisation, by the impugned judgment and decree dated 01.07.2003.

7. Plaintiff being aggrieved by the said judgment and decree passed by the trial Court in O.S.No.449/1996 dated 01.07.2003 preferred R.A.No.141/2003 before the District Judge Court at Chickaballapura. The first Appellate Court heard the arguments of both the parties and while passing the judgment dated 16.06.2008 framed following points for consideration:

"i. Whether the finding of the trial Court that defendant No.1 has executed Ex.P1 in favour of plaintiff and received Rs.20,000/- by way of advance, is not proper?

ii. Whether the finding of the trial Court that plaintiff was ready and willing to perform his part of contract i