Defendant No.5 in O.S.No.8215/1995 on the file of

the learned XVII Additional City Civil Judge, Bengaluru

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(CCH-16) (hereinafter referred to as 'the trial Court' for

short), has preferred this cross-objection being aggrieved

by the finding recorded in the judgment and decree

dated 27.06.2007 wherein the suit of the plaintiff was

decreed in part. The prayer for specific performance of

contract was rejected. It is held that the plaintiff is

entitled for refund of earnest money of Rs.26,000/- with

6% per annum from 09.10.1994 till realization. However

the trial Court directed its Registrar to initiate criminal

proceedings against defendant No.5 under section 340 of

Cr.PC.

2.

For the sake of convenience, the parties are

referred to as per their status and rank before the Trial Court.

3.

Brief facts of the case are that, the plaintiff

filed the suit O.S.No.8215/1995 before the trial Court

against defendant Nos.1 to 4 seeking the relief of specific

performance of the contract dated 14.04.1993 and

directing defendant Nos.1 to 4 to execute the registered

sale deed in respect of the Schedule Property by

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accepting the balance consideration amount. The

Schedule appended to the plaint describes the vacant site

bearing No.9 in Sy.No.42 of Krishnarajapuram Village,

Kasaba Hobli, Bangalroe South Taluk, measuring East to

West 40 feet and North to South 30 feet with the

boundaries mentioned therein.

4.

The plaintiff contended that defendants No.1

to 4 are the absolute owners of the Schedule Property

which had fallen to the share of the husband of

defendant No.1 and father of defendant No.2 to 4 by

name Puttappa, in the family partition. After the death of

said Puttappa, defendant Nos.1 to 4 have succeeded to

the estate.

5.

It is contended that defendant Nos.1 and 2 to

meet the family necessity, offered to sell the Schedule

Property in favour of the plaintiff for a total consideration

of Rs.80,000/-. Accordingly, the plaintiff and the

defendants entered into an agreement for sale on

14.04.1993. Defendant Nos.1 and 2 have executed the

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agreement on behalf of defendant Nos.3 and 4 also.

They have received in all Rs.28,000/- towards advance

amount. The defendants have agreed to execute the sale

deed within three months from the date of agreement to

sell. Even though the plaintiff approached the defendants

on several occasions requesting for executing the sale

deed, they were postponing the same under one pretext

or the other. However, the defendants handed over the

physical possession of the Schedule Property in favour of

the plaintiff immediately after executing the agreement

to sell and thus, the plaintiff is in possession and

enjoyment of the Schedule Property.

6.

It is contended that the plaintiff stored

construction materials in the Schedule Property with an

intention

to

put

up

residential

building,

but

the

defendants started negotiating with third parties with an

intention to sell the same. They were not ready and

willing to execute the registered sale deed. Therefore,

the plaintiff issued a legal notice on 21.07.1995 calling

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upon the defendants to receive the balance consideration

amount and to execute the sale deed. Defendant Nos.1

and 2 being the employees in the postal department,

have managed to return the said notice with a postal

shara as 'Not claimed'. Since the defendants have not

come forward to execute the sale deed, the plaintiff was

compel to knock the doors of Court seeking the relief of

specific performance of contract. It is stated that the

cause of action arose on 14.04.1993 and subsequently,

on various dates and prayed for decreeing the suit of the

plaintiff for specific performance of contract.

7.

Defendant Nos.1 to 4 have filed their written

statement denying the contentions taken by the plaintiff.

It is denied that there was a partition in the joint family

and the Schedule Property had fallen to the share of

Puttappa. On the other hand, it is contended that the

suit for partition is pending b