This appeal and cross-objection arise from the

judgment

and

decree

dated

18.04.2016

in

O.S.No.182/2011 on the file of Principal Senior Civil

Judge, Kalaburagi. The appellant is the defendant and

the cross-objector is the plaintiff in the suit.

2.

For the sake of convenience and clarity, the

parties are referred with respect to the position of each of

them in the suit.

3.

The plaintiff's case is that, the defendant being

the

absolute

owner

of

house

property

bearing

No.1-1495/48/C and 1-1495/48/C1 constructed on plot

No.24, bearing CTS No.1259, Sheet No.109, Chalta No.8,

Block No.VII situate at Angarkar Layout, behind S.K.

4

Yatrik Nivas, Bhagavati Nagar, Station Ward, Gulbarga

measuring 40' x 60' and consisting of ground floor and

first floor, entered into an agreement of sale with the

defendant on 30.10.2008 for selling the said property for

total sale consideration of Rs.38,00,000/-. Prior to

execution of the agreement, the plaintiff met the defendant

at Bengaluru on 28.08.2008 and finalized the sale

consideration amount. At that time, the defendant

received a sum of Rs.1,05,001/- from the plaintiff's

husband. Rs.5,001/- was paid by the plaintiff's husband

by way of cash and Rs.1,00,000/- was paid through

cheque dated 28.08.2008 drawn on State Bank of India,

Humnabad Branch. Then, the agreement was executed at

Kalaburagi on 30.10.2008 and at that time, the plaintiff

made payment of Rs.12,00,000/- to the defendant being

the part of the sale consideration. The defendant having

received Rs.13,05,001/- from the plaintiff, agreed to

execute the sale deed in favour of the plaintiff after

obtaining permission from the Government for selling

5

house property. Though the plaintiff was ready to pay the

balance of sale consideration, the defendant did not show

any interest to obtain permission from the Government

and execute the sale deed in favour of the plaintiff.

Sensing the mala fide intention of the defendant, the

plaintiff got issued a legal notice to the defendant on

20.09.2011 demanding the defendant to execute the sale

deed. The legal notice sent to the official address of the

defendant was served on him. Inspite of notice being

issued, defendant did not execute the sale deed and

therefore, the plaintiff was constrained to file a suit to

enforce the agreement. Alternatively, the plaintiff sought

refund of earnest money of Rs.13,05,001/- with interest at

the rate of 18% per annum.

4.

In the written statement, defendant admitted

the receipt of the advance amount paid by the plaintiff's

husband and stated that he applied for permission to the

Government for executing the sale deed, but he could not

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obtain permission and the same was conveyed to one

H.N. Ture, the broker who negotiated the transaction

between him and the plaintiff. He expressed his inability

to execute the sale deed for this reason. He also made it

clear that he was ready to return Rs.1,05,001/- which he

had received on 28.08.2008. However, in regard to

execution of agreement on 30.10.2008, it is contended

that the plaintiff's husband and the broker might have

fabricated it by forging the signature. He specifically

contended that when he brought it to the notice of the

broker that he had not obtained permission from the

Government, occasion to execute the agreement on

30.10.2008 would not have arisen. He also denied to have

received Rs.12,00,000/- from the plaintiff being the part of

sale consideration. He contended that there was no

privity of contract between him and the plaintiff, and in

this view, the suit is liable to be dismissed.

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5.

Based on the pleadings, the trial Court framed

the following issues:

"1. Whether

the

plaintiff

proves

that

the

defendant

has

agreed

to

sell

the

suit

property for sale consideration amount of

Rs.38,00,000/- and executed an agreement of

sale in her favour on 30.10.2008?

2. Whether the plaintiff further proves that, the

defendant has received an earnest money of

Rs.1,05,001/-

on

2