JUDGMENT :

Jyoti Mulimani, J.

1. Sri. Chandrakanth R. Patel, learned counsel for the appellant has appeared in person.

2. This appeal is from the Court of Principal District Judge, Hassan.

3. For the sake of convenience, the parties shall be referred to as per status and their rankings before the Trial Court.

4. The facts of the case are quite simple and are stated as under:

The suit property is situated at Doddapura village, Kasaba Hobli, Hassan Taluk comprised in Survey No. 74/3 measuring 03 Acres 04 Guntas out of which an extent of 02 Acres and 02 Guntas with boundaries on the East-the property of Shashikala, West-the property of Moganna, North-the property of Gowramma, South-the property of Thammegowda. It is stated that the second defendant is the son of the first defendant and the third & fourth defendants are the wife and son of the second defendant. The plaintiff contended that the suit property belonged to the second defendant and he agreed to sell the same in his favor for a consideration of Rs.7,99,500/- (Rupees Seven Lakh Ninety Nine Thousand and Five Hundred only) on 25.08.2006 hence an agreement of sale was executed and advance of Rs.20,000/- (Rupees Twenty Thousand only) was paid and the second defendant received the same. It is also averred that the defendants agreed to execute a sale deed after clearing the loan which was availed from Nidudi PACC Bank, Doddapura. Since the defendants failed to perform their part of the contract, the plaintiff was constrained to issue a legal notice on several dates. He did not receive any reply hence, he filed a suit seeking the relief of specific performance.

After service of the suit summons, defendants 1, 2 and 4 appeared through their counsel. The third defendant did not appear before the Court and placed ex-parte. The defendants 1, 2 & 4 denied the sale agreement. They contended that the loan borrowed from the Nidudi PACC Bank was waived off by the Government, hence there was no need for them to agree and sell the property in question in favor of the plaintiff. They specifically contended that the sale agreement is created and forged agreement. Among other grounds, he prayed for the dismissal of the suit.

5. On the basis of the above pleadings, the Trial Court framed the following:

ISSUES

1. Whether plaintiff proves that on 25.08.2006, the defendants No. 1 to 3 for themselves and also on behalf of defendant No. 4 agreed to sell the suit property in his favour and executed sale agreement in this behalf?

2. Whether plaintiff proves that agreed sale consideration of Rs.7,99,500/- and he paid Rs.20,000/- as advance sale consideration?

3. Whether plaintiff proves his ready and willingness to perform his part of the contract?

4. Whether plaintiff is entitled for such relief?

5. What order or decree?

To substantiate the claim, the plaintiff - C.B. Chandrashekar was examined as PW1, and three more witnesses were examined as PWs 2 to 4 and produced twenty four documents which were marked as Ex.P1 to Ex.P24. On behalf of the defendants one Rangegowda was examined as DW1 and produced two documents which were marked as Exs.D1 & 2.

On the trial of the action, the suit came to be decreed in part and directed the defendants to refund the earnest money of Rs.20,000/- (Rupees Twenty Thousand only) with interest at 12% per annum from the date of the agreement till realization. On appeal, the Judgment and Decree of the Trial Court were confirmed. Hence, this Regular Second Appeal is filed under Section 100 of CPC is filed.

6. Sri. Chandrakanth R. Patel, learned counsel for the appellant submits that both the Courts committed serios error in dismissing the suit. The Judgments and Decrees of both the Courts are not sustainable both in law as well as on facts and hence the same are liable to