A transferee who has obtained possession of a property in part performance of an agreement of sale can use the doctrine of part performance as a valid defense to resist a suit for possession, even if a suit for specific performance is barred by limitation.

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 03.04.2007 PASSED IN R.A.NO.322/2002 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 13.12.1999 PASSED IN O.S.NO.1168/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN), CHALLAKERE, PARTLY DECREEING THE SUIT FOR DECLARATION AND REJECTING THE RELIEF OF PERMANENT INJUNCTION.

THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 03.06.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE H.P.SANDESH

CAV JUDGMENT

This second appeal is filed against the judgment and decree passed in RA No.322/2002 wherein the judgment and decree of the trial Court passed in OS No.1168/1994 was set aside and consequently dismissed the suit filed for the relief of declaration and injunction and alternatively for the relief of possession and also prayed this Court to set aside the judgment and decree of the appellate Court passed in RA No.322/2002 and restore and confirm the judgment and decree passed by the Civil Judge and JMFC (Jr.Dvn.), Challakere in OS No.1168/1994 dated 13.12.1999.

2. The factual matrix of the case of the plaintiff/appellant herein before the trial Court, while seeking the relief of declaration and injunction and alternatively for possession, that he is running oil rotary in Site No.7 of Nayakanahatti Village in Challakere Taluk. He obtained license for running the same and got electricity connection from KEB, Challakere. He also obtained financial assistance from KSFC, Challakere by availing a sum of Rs.41,000/-. From the year 1999, he is running the oil rotary. He is also paying quarterly installments to the KSFC. He owes the loan price from KSFC. He is an ignorant man without worldly knowledge. He did not know reading and writing, except signing in Urdu. Prior to starting of power oil rotary, he was running the oil rotary with the bullocks. Because of increase in the oil rate and oil cakes, he started to run the rotary with electric connection. The defendant has no manner of title or possession in the suit schedule property i.e., oil rotary. The defendant is a well-versed and clever businessman. He is making an attempt to interfere in the affairs of oil rotary and he posed a threat to the enjoyment of oil mill. Therefore, he got issued a notice on 01.07.1991. Since the plaintiff/appellant knew of the interference in the enjoyment of suit schedule property, he filed a suit at the first instance for relief of declaration and permanent injunction and thereafter got amended to the plaint for the relief of declaration of injunction and alternatively for the claim of possession.

3. The defendant appeared before the trial Court and resisted the suit and denied the case of the plaintiff and contented that the plaintiff has contacted him and explained difficulty in running the oil rotary business and to pay installments to the KSFC towards the loan amount. Thereafter, he also showed the default notice issued by the KSFC and expressed his inability to pay the installments and hence expressed his willingness to sell the suit schedule property and requested him to purchase the said property. Accordingly, he agreed to sell the property for a consideration of Rs.61,000/- including the loan amount of Rs.41,000/- raised from KSFC, Chitradurga. It was agreed that plaintiff/appellant should take proper steps for transfer of KSFC loan and machinery to the name of the defendant and then execute the said deed and accordingly he has executed an agreement of sale on 16.