JUDGMENT

Dated this the 1st day of November, 2022.

This R.S.A has been directed against the judgment and decree in A.S.No. 24 of 2000 and cross objection in the said appeal on the file of Subordinate Judge's Court, Kasaragod which arise out of judgment and decree in O.S.No. 353 of 1999 on the file of Munsiff's Court, Kasaragod.

2. Appellant is the Plaintiff. Suit is one for specific performance of contract (Parties will hereafter be referred as per their status before the trial court). Plaintiff entered into a contract for sale of plaint A schedule property as per agreement dated 23.05.1983. As per which, 1st defendant agreed to sell the plaint A schedule property for a consideration of Rs.550/- and as part performance of the contract plaintiff paid Rs.500/- to the 1st defendant and the balance amount was agreed to be paid at the time of execution of the sale deed. Accordingly, plaintiff was put in possession of the plaint A schedule property. As per the agreement, 1st defendant has to execute the sale deed within three years after the receipt of Patta. 1st defendant handed over the order of assignment to the plaintiff and promised to inform the plaintiff as soon as the Patta is received. But inspite of that, till date, 1st defendant did not inform about the receipt of Patta. Plaintiff on several occasions approached the 1st defendant to enquire about the receipt of Patta and plaintiff was informed that Patta was not received and postponed the execution of the sale deed. Plaintiff has been ready and willing to perform his part of contract and issued a registered legal notice on 14.08.1999 claiming upon the defendant to execute the sale deed, to which a reply was sent stating that property has been sold to the 2nd defendant for valid consideration. If at all 2nd defendant obtained any sale deed from the 1st defendant, he is also liable to execute the sale deed in favour of the plaintiff in view of the contract between the plaintiff and 1st defendant. Hence the suit.

3. The 1st defendant filed written statement denying the execution of the agreement for sale. The alleged agreement according to him is a fabricated document. It is contended that he was in possession and enjoyment of the property, which sold to the 2nd defendant on 25.11.1994 and thereafter the 2nd defendant is in possession and enjoyment of plaint A schedule property. The 2nd defendant already constructed foundation for constructing a house before four months. 1st defendant borrowed Rs.500/- from plaintiff in 1983 and as insisted by him as a collateral security, 1st defendant handed over the order of assignment for due repayment of the loan. The plaintiff obtained signature of the defendant in blank stamp papers at the time of borrowal as security for the repayment. The agreement has been created misusing the blank stamp paper. Suit is barred by limitation.

4. 2nd defendant supported fully the contentions raised by the

1st defendant and purchase of the property by him on 25.11.1994. It is contended that he is a bonafide purchaser for value and is in possession and enjoyment of the plaint schedule property as absolute owner. He constructed a foundation in plaint A schedule property spending Rs.25,000/- four months back for constructing a house. A loan of Rs.70,000/- also sanctioned for construction of house in plaint A schedule property.

5. PWs 1 to 3 examined and Exts. A1 to A4 marked from the side of plaintiff. DWs 1 and 2 examined and Ext.B1 and B4 series marked from the side of the defendants. Ext.C1 also marked.

6. The Trial court on evaluating the facts circumstances and evidence adduced, found that agreement was duly executed by the 1st defendant. It is also found that 2nd defendant is not a bonafide purchaser for value. But it is further found that plaintiff was not ready and willing to perform his part of the contract and that the suit is barred by limitation and accordingly, the suit was dismissed.

7. Against which, the appeal was preferred before the Subordinat