Defendant No.2 preferred this second appeal being

aggrieved by the impugned judgment and decree dated

18.09.2010 passed in R.A.No.86/2007 on the file of the

learned II Additional District and Sessions Judge, Mysuru

(hereinafter referred to as 8First Appellate Court9 for brevity),

allowing the appeal, setting aside the judgment and decree

dated 27.07.2007 passed in O.S.No.11/2006 on the file of the

learned Civil Judge (Sr.Dn.) at T.Narasipura (hereinafter

referred to as 8the trial Court9 for brevity) and decreeing the

suit of the plaintiff for specific performance of the agreement

for sale dated 01.08.2002 in favour of the plaintiff and

directing defendant No.2 to join defendant No.1 in executing

the sale deed.

2.

For the sake of convenience, 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.11/2006 before the trial Court against

defendant Nos.1 and 2 seeking specific performance of the

agreement for sale and direct the defendants to execute the

3

sale deed in her favour in respect of the schedule property. It

is contended by the plaintiff that she entered into an

agreement for sale dated 01.08.2002 with defendant No.1

whereunder, he had agreed to sell 04.11 acres of land in

Sy.No.49

situated

at

Maragowdanahalli,

Bannur

Hobli,

T-Narasipur Taluk, Mysuru District, which is described in the

plaint

schedule,

for

a

total

consideration

amount

of

Rs.4,60,845/-.

The

plaintiff

paid

advance

amount

of

Rs.50,000/- and the agreement for sale was entered into in

the presence of the witnesses. It was agreed between the

parties that the balance consideration amount is to be paid on

or before 15.02.2003 at the time of getting the property

registered in the name of the plaintiff.

4.

It is contended that the plaintiff was ready and

willing to perform her part of contract and she had insisted

defendant No.1 to execute the sale deed by receiving the

balance consideration amount. But defendant No.1 had not

performed his part of the contract. Therefore, got issued the

legal notice. Even though the legal notice was served on

defendant No.1, the postal acknowledgment remained with

the counsel who was engaged earlier by the plaintiff.

4

Therefore, a rejoinder dated 09.05.2003 as per Ex.P4 was

issued. The said notice was returned as defendant No.1

refused to receive the same. However, the notice sent

through certificate of posting was served on defendant No.1

but he had not replied for the same.

5.

It

is

contended

that

defendant

No.1

had

approached the plaintiff seeking for some more time to

comply with the terms of agreement and therefore, plaintiff

waited honestly believing that defendant No.1 will keep up his

words. In the meantime, the husband of the plaintiff seriously

fell ill and was admitted to the hospital. Subsequently he died

on 15.10.2005. At the same time, plaintiff came to know that

defendant No.1 executed the sale deed dated 04.10.2004 in

favour of defendant No.2 and sold the schedule property for a

total consideration amount of Rs.1,37,000/-. The same was

never brought to the notice of the plaintiff either by defendant

No.1 or by defendant No.2. Defendant No.2 was fully aware

of the agreement for sale entered into between the plaintiff

and defendant No.1 and therefore, he is not a bonafide

purchaser. The sale deed dated 04.10.2004 is null and void

and inoperative. Hence, the same is to be set aside.

5

Therefore, the plaintiff prayed for specific performance of

contract and to execute the sale deed in her favour as per the

terms of the

agreement, after

receiving the balance

consideration amount, by declaring that sale deed dated

04.10.2004 entered into between defendant No.1 and

defendant No.2 is null and void and inoperative.

6.

Defendant No.2 appeared before the trial Court

and filed his written statement denying the contentions taken

by the plaintiff. It is contended that there is no land in

Sy.No.49 situated at Maragow