AND

DECREE

DATED

30.07.2018

PASSED

IN

O.S.NO.474/2006 ON THE FILE OF THE COURT OF SMALL CAUSES

AND SENIOR CIVIL JUDGE, MYSURU.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

The captioned second appeal is filed by the defendant

Nos.3 and 4 who are questioning the concurrent findings of

the Courts below wherein suit for specific performance filed by

plaintiff is decreed.

2.

For the sake of brevity, the parties are referred to

as per their rank before the Trial Court.

3

3.

The plaintiff filed a suit by specifically contending

that defendant Nos.1 and 2 offered to sell the suit schedule

property and accordingly have executed an agreement to sell

on 21/29.10.2005 for sale consideration of Rs.4,05,000/- by

receiving advance sale consideration of Rs.1,05,000/-. The

plaintiff contended that defendants assured that after securing

all necessary documents, they would complete the transaction

within three months. Plaintiff9s grievance is that though she is

ready to complete the transaction within three months as

agreed under the agreement, the defendants went on

postponing. Therefore, plaintiff was compelled to issue a

notice on 27.01.2006 calling upon the defendant Nos.1 and 2

to receive balance sale consideration and execute sale deed.

However, frivolous reply was issued on 03.02.2006 by

defendant Nos.1 and 2. This compelled the plaintiff to file the

present suit.

4.

The defendants, on receipt of summons, tendered

appearance and contested the proceedings by filing written

4

statement. The defendant Nos.1 and 2 contended that suit is

bad for non-joinder of necessary parties on the premise that

the property agreed to be sold is an ancestral property and

therefore, their daughters are also necessary to the present

suit. The defendant Nos.1 and 2 further contended that it is

the plaintiff who is guilty of not performing her part of contract

as plaintiff was seeking further time to pay balance sale

consideration. Therefore, on these set of grounds, the

defendant Nos.1 and 2 contended that time is the essence of

contract and plaintiff is not entitled for discretionary relief of

specific performance.

5.

The plaintiff to substantiate her claim examined

herself as PW.1 and examined two independent witness as

PWs.2 and 3 and relied on documentary evidence vide Exs.P-1

to P-8. While defendants examined defendant No.1 as DW.1

and three witnesses as DWs.2 to 4 and produced the

subsequent sale agreement vide Ex.D-1.

5

6.

The

Trial

Court

having

examined

oral

and

documentary evidence answered issue Nos.1 to 3 in the

affirmative. The Trial Court on assessing the evidence on

record held that plaintiff has succeeded in proving that she is

ready and willing to perform her part of contract. Having

examined the material on record, Trial Court was also of the

view that plaintiff is entitled discretionary relief of specific

performance of contract. Consequently, suit is decreed.

7.

The defendant Nos.1 and 2 preferred appeal in

R.A.No.468/2018 while defendant Nos.3 and 4 preferred

appeal in R.A.No.467/2018.

8.

The Appellate Court having independently assessed

oral and documentary evidence has also come to conclusion

that plaintiff has succeeded in establishing her readiness and

willingness. Having examined the clinching evidence let in by

plaintiff, Appellate Court was also of the view that plaintiff has

succeeded in proving her readiness and willingness. Appellate

6

Court referring to recitals in Ex.P-1 found that defendant

Nos.1 and 2 who are the parents under compelling situation

have offered to sell the suit land for family necessity and to

repay the family debts. Therefore, Appellate Court having

examined the evidence let in by plaintiff and in absence of

rebuttal evidence, was of the view that there is no breach on

the part of plaintiff in performing her part of contract and

therefore, is entitled for discretionary relief of specific

performance of contract.

9.

These concurrent findings are c