Challenging impugned judgment and decree dated 01.03.2019

passed by XXXV Addl. City Civil and Sessions Judge, Bengaluru

(CCH-36), in O.S.No.7663/2003, this appeal is filed.

Appellant no.1 was defendant no.2 and wife of defendant

no.1. She along with appellant nos.2 to 5 - legal representatives of

defendant no.1 has preferred this appeal. Respondents no.1 and 2

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herein were plaintiff and defendant no.3 respectively in suit. For sake

of convenience, they will be referred to as such.

Brief facts are that plaintiff filed O.S.no.7763/2003 seeking

for relief of specific performance of unregistered agreement of sale

dated 01.12.2000 by directing defendants to execute registered sale

deed in favour of plaintiff in respect of sites no.11, 14 and eastern

portion of site bearing no.19, formed in Sy.no.26, situated at

Nelagadaranahalli, Yeshvantpur Hobli, Bengaluru (for short 'suit

property').

In plaint, it was stated that suit property belonged to

defendant no.3 - C.N. Narayanappa, who had executed a registered

General Power of Attorney ('GPA' for short) in favour of defendants

no.1 and 2 in respect of suit property, who in turn executed

agreement of sale in favour of plaintiff for total sale consideration of

Rs.4,50,000/- after receiving Rs.4,00,000/- in advance and agreeing

to execute registered sale deed by receiving balance of Rs.50,000/-,

within 11 months from date of agreement. It was further stated that

physical possession was not delivered as A.C.C. sheet roofed house in

it was tenanted. Thereafter, plaintiff was ready and willing and called

upon defendants to perform their part of agreement, but, they failed

to come forward to execute sale deed.

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On said cause of action, plaintiff engaged counsel to file

suit for specific performance. But said counsel filed suit only for

permanent

injunction

on

erroneous

facts,

which

necessitated

amendment of plaint. After filing application, said suit was withdrawn

and present comprehensive suit was filed. It was stated that cause of

action for suit arose on 01.12.2000 i.e., date of execution of

agreement of sale on receipt of Rs.4,00,000/- by defendants no.1

and 2.

6.

On service of suit summons, defendants no.1 and 2

entered appearance; while defendant no.3 was placed ex-parte.

During pendency of suit, defendant no.1 died. His legal representatives

including his wife - defendant no.2 were brought on record as

defendants no.1(a) to (e).

7.

Written statement was filed denying execution of sale

agreement dated 01.12.2000 in favour of plaintiff for Rs.4,50,000/- in

respect of suit property after receiving Rs.4,00,000/- as advance etc.

Alternatively, it was contended that even if sale agreement was

executed, time of 11 months fixed for execution of sale deed expired

on 01.11.2001. And as time was essence of contract, suit filed on

23.10.2003 indicate that plaintiff was not ready and willing to perform

her part of contract.

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6. It was further stated that instead of calling upon defendants

to execute sale deed, plaintiff had deliberately resorted to filing suit for

permanent injunction to dilate cause of action. Hence, she was not

entitled for relief of specific performance.

7. Based on pleadings, trial Court framed following issues:

1. Whether the plaintiff proves that the defendant

No.1 and 2 had entered into an agreement of

sale dated 01.12.2020 agreeing there under to

sell the suit schedule property in her favour for

consideration of Rs.4,50,000.00 and received

advance amount of Rs.4.00 lakhs?

2. Whether the plaintiff proves that she has always

been ready and willing to perform her part of

contract?

3. Whether the plaintiff is entitled for the relief of

specific performance of contract?

4. Whether the plaintiff is entitled for possession of

the plaint schedule property?

5. What decree or order?

8. To establish her case, plaintiff examined herself and another

as PWs.1 and 2 and got marked Exhibits P1 to P12. On other side,

defendant no.2 was examined as DW.1 and Exhibit C1 was m