JUDGMENT

Defendant in O.S.No.9536/2004 on the file of 11th Additional City Civil Judge, Bengaluru (CCH No.8) has filed this appeal challenging the judgment and decree passed dated 10.01.2011 in the said case.

2. The parties herein are referred as per their ranking before the Trial Court for the sake of convenience.

3. It was the case of Plaintiff/Respondent No.1 herein that suit property bearing Site No.127 formed by BDA was allotted to defendant by its allotment No.BBA.ADM/BS-2-127-BSK/3/2000-01 dated 12.09.2000 and it appears BDA had to execute the Sale Deed in her favour in due course, after payment of all the amount. The defendant had offered to sell the said property to the plaintiff for sale consideration of Rs.1,30,000/-. The plaintiff agreed to purchase the same; Accordingly, defendant had executed an agreement of sale dated

24.01.2002 agreeing to sell the suit property in favour of Plaintiff immediately after execution of absolute sale deed in her favour by the BDA: and received Rs.35,000/- as earnest money on the date of agreement of sale.

4. After execution of the agreement of sale, from time to time, defendant had received part of the earnest money as follows:

5. On the request of the defendant, plaintiff had also paid an instalment of Rs.24,618/- to BDA as sital value on 20.03.2002. The plaintiff had also paid Rs.6,866/- to BDA towards vacant site penalty on 16.08.2002. In all, plaintiff had paid entire sale consideration amount to the defendant. Plaintiff was/is always ready and willing to perform his part of the contract. He was persistently demanding the defendant to execute sale deed in his favour after persuading the matter with the BDA. Inspite of that, defendant did not comply. On 05.02.2004, plaintiff had issued notice to the defendant through his Advocate, calling upon the defendant to execute the registered sale deed after obtaining sale deed from the BDA; however, defendant did not comply to the terms of the notice and sent a reply dated 01.03.2004, denying the case of the plaintiff and contending that she had not executed any such agreement of sale and not received any earnest money. Due to the said reason, plaintiff had filed the suit praying the relief of specific performance of the said agreement.

6. Defendant had contended before the Trial Court that the BDA had allotted Site No.127 to her by letter of allotment dated 12.09.2000. However, it had not executed sale deed in her favour. During 2002, her mother-in-law was seriously ill. Therefore, to treat her and also for the family necessity, she sought financial assistance from one Mahadeva. The said Mahadeva had taken her to the plaintiff, who was known to him. Plaintiff told the defendant that he was ready to lend the money, provided certain property documents has to be given as security.

Accordingly, she requested the plaintiff to lend Rs.1,50,000/- and at the first instance, plaintiff had paid Rs.35,000/-, she handed over BDA allotment letters to him and took her signature on a stamped paper. Subsequently, now and then, plaintiff had paid amounts to her and taken her signature on the agreement paper. At no point of time, plaintiff had disclosed about the sale agreement to her and defendant never intended to sell the suit property in favour of the plaintiff. Taking undue advantage of illiteracy of the defendant, plaintiff had created the alleged sale agreement and had taken signatures of the defendant. After receiving the notice from the plaintiff, she came to know about the same and she suitably replied to the said notice. With said contentions, she prayed to dismiss the suit.

7. From the rival contentions of the parties, the Trial Court had framed the following issues:

1. Whether the plaintiff proves that the defendant was agreed to sell the suit schedule property for Rs.1,30,000/- and executed an agreement of sale dated 24.01.2002 by re