The burden of proof lies on the party claiming specific performance to establish all conditions of entitlement, including possession.

CAV JUDGMENT

Regular Second Appeal No.426/2006 is arising from the judgment and decree dated 01.04.2004 in O.S.No.77/1995 on the file of Principal Civil Judge (Jr.Dn.), Anekal and the judgment and decree dated 04.10.2005 in R.A.No.138/2004 on the file of I Additional Civil Judge (Sr.Dn.), Bengaluru Rural District, Bengaluru.

2. RSA No.451/2006 is arising from the judgment and decree in O.S.No.17/1996 on the file of the Principal Civil Judge (Jr. Dn.), Anekal and judgment and decree in R.A.No.139/2004 on the file of I Additional Civil Judge (Sr. Dn.), Bengaluru Rural District, Bengaluru.

3. O.S.No.77/1995 was one for specific performance to enforce agreement for sale dated 24.01.1990. The suit in O.S.No.17/1996 is one for bare injunction. Both the suits were clubbed together as the property involved in both the suits was one and the same and common judgment was delivered. Specific performance is declined by dismissing O.S.No.77/1995 and the suit for injunction has been decreed by decreeing O.S.No.17/1996.

4. Aggrieved by the aforementioned judgment and decree, the plaintiff in O.S.No.77/1995 filed R.A.No.138/2004 and aggrieved by the judgment and decree in O.S.No.17/1996, defendants in the said suit filed R.A.No.139/2004. Both Regular Appeals were disposed of by common judgment and both appeals are dismissed.

5. Aggrieved by the aforementioned judgment and decree, two Regular Second Appeals are filed.

6. This Court vide order dated 23.02.2007 has admitted the appeals to consider the following substantial questions of law:

"1. Whether the Courts below were justified in declining to grant a decree of specific performance after recording a finding that the suit agreement is proved and consequently when there is a specific recital in the agreement of sale that plaintiffs are put in possession in part performance of the agreement of sale?

2. In view of the recital in the agreement of sale stating that plaintiffs are put in possession of the agreement of sale, whether the Courts below were justified in granting a decree of injunction in favour of a purchaser from the I defendant where as on the date of purchase, the I defendant himself was not in possession?"

7. The facts averred in the plaint in O.S.No.77/1995 are as under:

- Plaintiff and 1^st defendant are brothers. Defendant No.1 executed an agreement for sale with the plaintiff agreeing to convey half portion in Sy.No.164/2 measuring 2 acres 1/4 gunta in Singena Agrahara Village, Sarjapura Hobli, Anekal Taluk. Remaining half portion in the said property belonged to the plaintiff. Plaintiff agreed to purchase the suit property for a consideration of Rs.50,000/- from his brother - 1^st defendant. Plaintiff claims to have paid entire consideration amount in three installments. First installment of Rs.45,000/- is allegedly paid on the date of agreement, second installment of Rs.3,000/- on 10.04.1990 and final installment on 28.03.1993. Plaintiff also claims that possession of the suit property is handed-over to him on 26.02.1990.

8. The plaintiff claims that second and third installments are duly endorsed by 1^st defendant on the backside of the original agreement dated 24.01.1990. Initially one month time was fixed to complete the sale transaction. Later, it was extended and the suit for specific performance is filed in 1995, after the plaintiff sensed that 1^st defendant was making attempts to alienate the property. Plaintiff claims that he expressed his intention to purchase the property and sent a telegram on 31.01.1995 to 1^st defendant and 1^st defendant very next day, executed a collusive sale deed in favour of Obala Reddy the father of 3^rd defendant.

9. Defendant-brother who