Though appeal is listed for admission, with

consent of learned counsel for parties, it is taken

up for final disposal.

Challenging judgment and decree dated

17.01.2017 passed by Principal Senior Civil Judge,

Jamkhandi (for short, “first appellate Court”) in

R.A.no.33/2014

dismissing

appeal

confirming

judgment and decree dated 28.04.2014 passed by

Principal

Civil

Judge

and

I

Additional

JMFC.,

Jamkhandi

(for

short,

“trial

Court”)

in

O.S.

no.70/2008, this appeal is filed.

- 3 -

Appellant

herein

was

plaintiff,

while

respondents herein were defendants in original

suit.

For

sake

of

convenience,

they

shall

hereinafter be referred to by their rank in original

suit.

4.

O.S.no.70/2008 was filed by plaintiff for

relief

of

specific

performance

of

registered

agreement of sale dated 29.04.2006 executed by

defendants in favour of plaintiff in respect of land

bearing R.S.no.41/1A measuring 3 acres 28 guntas

of Jakanoor village, Jamkhandi taluk (hereinafter

referred to as ‘suit property’) and for direction for

handing over of vacant possession thereof etc.

5.

In plaint, it was stated that suit property

was belonging to defendants jointly. They agreed

to sell same to plaintiff for total consideration of

Rs.2,05,000/- for family necessity and executed

agreement of sale on 29.04.2006 by receiving

Rs.50,000/- towards earnest money. Subsequently

- 4 -

defendants were once again in need of money and

received

further

sum

of

Rs.1,30,000/-

on

12.05.2008. Thus, plaintiff had paid total sale

consideration of Rs.1,80,000/-. It was stated that

as per terms of agreement, sale deed was to be

executed on or before 29.04.2009, while seller was

required to keep it unencumbered and deliver

vacant possession to plaintiff on date of execution

of sale deed. Thereafter, when plaintiff demanded

execution

of

sale

deed

by

receiving

balance

consideration, defendants failed to come forward.

Even after legal notice got issued on 13.05.2008,

defendants did not come forward to execute sale

deed. Hence, suit was filed.

6.

Upon

service

of

suit

summons,

defendants entered appearance and filed written

statement denying plaint averments and contended

that suit was not maintainable. They specifically

stated that plaintiff was in money lending business

- 5 -

and

had

advanced

sum

of

Rs.50,000/-

to

defendants and got created sale agreement by

undue influence and fraud. Thereafter, defendants

had repaid Rs.40,000/- with interest before elders

and there

was

no

occasion

for

execution of

agreement

of

sale.

They

further

stated

that

payment of Rs.1,30,000/- and extension of time

for execution of sale were totally concocted and

plaintiff had not approached Court with clean

hands.

7.

Based on pleadings, trial Court framed

following issues:

(1) Whether the plaintiff proves that, the

defendants

have

executed

sale

agreement

on

29.04.2006

with

respect to suit schedule property for

their family legal necessity for a

valuable

consideration

of

Rs.2,05,000/- by receiving earnest

amount of Rs.50,000/- from him on

the same day?

- 6 -

(2) Whether the plaintiff further proves

that, the defendants family member

Sri.Mayappa S/o Tippanna Jugal on

12.05.2008 has received hand loan of

Rs.1,30,000/-

out

of

balance

consideration

amount

of

Rs.1,55,000/- for their family legal

necessity by executing non-judicial

bond in favour of the plaintiff?

(3) Whether the plaintiff further proves

that, he is always ready and willing

to perform his part of contract?

(4) Whether the plaintiff further proves

that, the defendants fails to perform

their part of contract?

(5) Whether the defendants prove that,

they

have

borrowed

loan

of

Rs.50,000/- from the plaintiff for

that loan the plaintiff has got created

the alleged sale agreement?

(6) Whether the plaintiff is entitled for

relief

of

specific

performance

of

contract

or

he

is

entitled

for

- 7 -

alternative relief of refund of earnest

amount with 18% interest?

(7) What order or decree?

8.

Thereafter, plaintiff examined himself and

three others as PWs.1 to 4 and got marked