J U D G M E N T

Heard the learned counsel for the appellant/plaintiff and the learned counsel for the respondents/defendants.

2. The appellant has filed appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908, (for short, 'CPC') to set aside the order dated 12-12-2023 passed by the learned III Additional Senior Civil Judge and Chief Judicial Magistrate, Dharwad, in Original Suit No.308 of 2023 on I.A. No.1 filed under Order XXXIX Rules 1 and 2 of the CPC, whereby the Trial Court rejected I.A. No.I, thus, plaintiff filed this appeal.

3. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellant is the plaintiff and the respondents are defendants Nos.1 and 2.

4. It is the case of the plaintiff that the plaintiff and the defendants are known to each other. Defendant No.1 being the owner of land bearing Survey No.33/1 measuring 8 acre 31 gunta entered into agreement of sale with the plaintiff to sell the suit schedule property for total consideration of Rs.60 lakhs. Accordingly, on 25-1-2023, the plaintiff and defendant No.1 entered into sale agreement and received a sum of Rs.57 lakh as advance sale consideration and balance consideration amount was agreed to be paid at the time of registration of sale deed. But, defendant No.1 in order to defraud the plaintiff and in collusion with defendant No.2 transferred his share in favour of defendant No.2. Plaintiff filed suit.

5. Defendant Nos.1 and 2 opposed the interlocutory application. In turn, the trial Court rejected I.A. No.1 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the CPC. Aggrieved by the impugned order, the plaintiff preferred this appeal contending that the trial Court wrongly interpreted the contents of the agreement of sale which resulted in miscarriage of justice.

6. It is contended that defendant No.1 had filed a suit in Original Suit No.82 of 2015 against defendant No.2, who is none other than his brother, for the relief of declaration and permanent injunction. The trial Court decreed the suit by declaring defendant No.1 as absolute owner of the suit schedule property and also granted permanent injunction in respect of Survey No.33/1. Being aggrieved by the judgment and decree passed by the trial Court in Original Suit No.82 of 2015, defendant No.2 preferred appeal in Regular First Appeal No.100255 of 2020 before co-ordinate bench of this Court. On 26-6- 2023, defendant Nos.1 and 2 filed a compromise petition and as per the compromise decree, defendant No.1 was allotted with 2 acre and defendant No.2 was allotted with 6 acre 31 gunta of land. In order to defraud the plaintiff, defendant Nos.1 and 2 have entered into such compromise which is not in accordance with law. Hence, the plaintiff filed suit for specific performance of contract and to declare the compromise entered into between defendant Nos.1 and 2 as not binding on the rights of the plaintiff. By virtue of the compromise entered into between defendant Nos.1 and 2 in Regular First Appeal No.100255 of 2020, defendant Nos.1 and 2 are trying to alienate the schedule property. If they are allowed to alienate the schedule property, more hardship is going to be caused to the plaintiff. Hence, the plaintiff filed a suit for specific performance of contract and to declare that the compromise decree passed in Regular First Appeal No.100255 of 2020 is not binding on him. He has also filed I.A. No.1 to restrain the defendants from alienating the suit schedule property till disposal of the suit.

7. Learned counsel for respondent No.2/defendant No.2 specifically contended that defendant No.2 is not a party to the proceedings, whatever the agreement entered into between the plaintiff and defendant No.1 is not binding upon him. Further, the plaintiff had the knowledge of earlier litigation pending between defendant Nos.1 and 2 in Original Suit No.82 of 2015 and Regular First Appeal No.100255 of 2020. Hence, the learned counsel prayed to dismiss