IMPORTANT POINT
Suit for specific performance of contract must be filed within reasonable time.

A.V. Chandrashekara, J.— This appeal is by the plaintiff in the original suit bearing No. 15 of 1994 pending before the Additional Civil Judge (junior Division) and JMFC, Haveri as he is aggrieved by the divergent finding passed by the Additional Civil Judge (Senior Division), Haveri in RA. No.46 of 2004, dated 9.9.2009.

2. Respondent herein was the defendant in the said suit. Parties will be referred to as per their ranking before the Trial Court.

3. Suit for specific performance of contract on the basis of alleged agreement to sale dated 25.8.1985 came to be decreed after contest on 8.7.2004. Against the said judgment and decree, an appeal came to be filed under Section 96 of Civil Procedure Code, 1908. Several grounds have been urged by the defendant in the said appeal.

4. After perusing the records of the Court below and hearing the arguments from the learned Counsel for the parties, the learned Judge of the First Appellate Court has allowed the appeal and consequently dismissed the suit filed for specific performance. It is this divergent finding, which is called in question on various grounds as set out in this appeal memo.

5. The case of the plaintiff is that the defendant is the owner of 3 acres of land situated in Sy. No. 32/2 of Gowrapura Village as described in the schedule appended to the plaint. The defendant is stated to have agreed to execute the regular sale deed in favour of the plaintiff for a total consideration of Rs. 15,000 and in this regard, he has executed agreement to sale dated 25.8.1986 by receiving Rs.5,000 as advance sale consideration.

6. According to the plaintiff, he was put into possession of the property by the defendant and he is stated to be in possession of the same. Inspite of plaintiff requesting the defendant to execute the sale deed, defendant went on giving evasive relies. At last, the plaintiff was constrained to get legal notice issued calling upon the defendant to execute regular sale deed by receiving balance sale consideration. Plaintiff’s case is that he was ready and willing to perform his part of the contract and inspite of notice, the defendant did not come forward to execute the regular sale deed.

7. The defendant appeared before the Trial Court and had specifically denied the contents of the plaint and had called upon the plaintiff strictly to prove the contents of the plaint. It is his case that, plaintiff is his close relative and had worked as Secretary of Koti Basaveshwar Co-operative Society for more than 20 years and he was dismissed from service on the allegation of misappropriating the funds of the said Society and that the defendant was also a member of the said Society. When the relationship of the defendant was very cordial with the plaintiff, the plaintiff had taken his LTM on a stamp paper telling him that they were required for advancing the loan in his favour by the Society. The said agreement is stated to be a concocted document and that he was never received the sum of Rs.5,000 and that he was never executed an agreement of sale. With these pleadings, he had requested the Court to dismiss the suit.

8. On the basis of the above pleadings, the following six issues came to be framed by the Trial Court and have found at pages 4 and 5 of the impugned judgment passed in O.S. No. 15 of 1994:

ISSUES

(1) Does the plaintiff prove that, the defendant has entered into agreement of sale on 25.8.1986, in respect of the suit land, for a total consideration of Rs. 15,000.

(2) Does he further prove that, out of total consideration of Rs.15,000, the defendant has received Rs. 5,000 as earnest money on the same date?

(3) Does he further proves that, he is ready and willing to perform his part of contract since the date of agreement of sale?

(4) Does the defendant prove that, the plaintiff has falsely created the alleged agreement of sale dated 25.8.1986, under the circumstances mentioned at para 9 of his W.S.?

(5) Is the plaintiff entitled for specific perform