JUDGMENT

THE CHALLENGE:

Appellant-plaintiff in OS 54/2013 on the file of Addl.Sr.Civil Judge and JMFC, KGF being aggrieved by the dismissal of his suit vide judgment dated 30.01.2015, has preferred this appeal.

2. The issue under consideration in the present appeal is regarding, "validity and enforceability of the agreement of sale dated 04.02.2008 executed by defendant nos. 1 to 5 agreeing to sell the suit schedule properties in favour of the plaintiff for a valuable consideration of Rs.23,80,000/-".

3. Plaintiff filed a suit against defendants seeking relief of specific performance of the contract in respect of the suit schedule properties described in the schedule stating that, the father of defendant nos. 1 to 5 and father-in-law of defendant no.6 by name P.V.Seetharamaiah, being the owners of the suit schedule properties agreed to sell the same for a consideration of Rs.23,80,000/-. To that effect in part performance of the contract, received Rs.5,00,000/- on 4.2.2008. In this regard, they executed the agreement of sale and agreed to execute the registered sale deed by receiving the balance sale consideration of Rs.18,80,000/-. Defendant no.6 is having knowledge about the same.

4. It is averred that, subsequent to said agreement of sale, in addition to the advance amount of Rs.5,00,000/-, for the family necessity, these defendants received Rs.4,30,000/- on various dates i.e. 25.6.2008, 6.8.2008, 15.12.2011. Thus, in all, defendants have received Rs.9,30,000/-. On 24.8.2013, P.V.Seetharamaiah Setty died leaving behind defendants as his legal heirs. It is averred that, defendants agreed to receive balance consideration of Rs.14,50,000/- and execute the sale deed having succeeded to the estate of deceased Seetharamaiah Setty.

5. It is alleged by the plaintiff that defendants started evading execution of sale deed on one pretext or the other. Therefore, plaintiff issued a legal notice on 21.10.2013 and called upon the defendants to execute the sale deed by receiving balance consideration amount. Despite service of notice, defendant nos. 1 to 5 have not issued any reply or complied the contents of the notice.

Defendant no.6 evaded to receive the notice.

6. It is averred by the plaintiff that, he was ever ready and willing to perform his part of the contract and is ready to pay the balance consideration amount of Rs.14,50,000/-. As defendants failed to perform their obligation, the suit was filed by the plaintiff praying to decree the suit.

PROCEEDINGS BEFORE THE TRIAL COURT:

7. Though defendants appeared before the trial Court, but, have not filed any written statement despite giving sufficient opportunity to them. In order to prove the case of the plaintiff, he himself entered the witness box as PW.1 and got marked Ex.P1 to P11 the documents. The defendants have not cared to cross-examine PW.1.

8. The learned trial Court, having heard the arguments and on perusal of the material placed on record, raised five points for consideration and answered all the points for consideration in the negative and ultimately dismissed the suit. This is how the appellant- plaintiff is before this Court challenging the dismissal of his suit.

9. Though notice of this appeal is served on respondents-defendants, they remained unrepresented before this Court.

ARGUMENTS OF THE COUNSEL FOR THE APPELLANT:

10. Smt. Rakshitha V.N., learned counsel for the appellant in addition to narrating the plaint averments submits that, the learned trial Court has disbelieved the agreement of sale Ex.P1 and suspected its genuineness only on the ground that attesting witnesses to the said agreement of sale and suspecting other documents produced by the plaintiff has wrongly dismissed the suit.

11. She further submits that, when PW.1 being the party to the said document has come before the trial Court and substantiated his case by adducing evidence both oral and documentary, the learned trial Court wrongly invoked the provisions of Section 67 of the Indian Evidence Act and has con