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CASE NO.:

Appeal (civil) 666 of 2002

PETITIONER:

Pratap Lakshman Muchandi & Ors.

RESPONDENT:

Shamlal Uddavadas Wadhwa & Ors.

DATE OF JUDGMENT: 18/01/2008

BENCH:

A.K.MATHUR & MARKANDEY KATJU

JUDGMENT:

J U D G M E N T

WITH

Civil Appeal No.728 of 2002

Contempt Petition ) No. 52 of 2006 in C.A.No.728 of 2002

Contempt Petition ) No.58 of 2006 in C.A.No.666 of 2002

A.K.MATHUR, J.

1. Both the Civil Appeals arise against the order

passed by the Karnataka High Court in RFA Nos.290 & 311 of

1993 dated 17.12.1999. Therefore, both the appeals are

disposed of by a common order.

2. The brief facts which are necessary for the

disposal of these appeals are that a suit was filed on the

basis of an agreement to sell dated 24.4.1982 for a

consideration of Rs.1,20,000/- for property, namely, open

space with some dilapidated room bearing CTS No.4094/1B/2

admeasuring 472 square yards, College Road, Belgaum. The

agreement was executed by the first defendant as the

\021Kartha\022 of Hindu joint family along with other defendant

Nos.2 to 4. A sum of Rs.10,000/- was paid as advance and

the agreement was to be concluded within six months. As the

defendants did not execute the sale deed within the

stipulated time, a suit was filed by the plaintiff after

giving notice dated 10.5.1983 for enforcement of the

agreement to sell. The defendant Nos.1 to 5 also filed a

suit being O.S.No.236 of 1982 for injunction against

defendant Nos.6 to 15 and took a plea that because of the

pendency of their suit, they could not execute the sale

deed and they would execute the sale deed after decree in

their favour was passed. The plaintiff suspected their

movements and, therefore, he filed the present suit.

Defendant Nos.1 to 3 filed a common written statement

admitting the joint Hindu family consisting of defendant

Nos.1 to 4. But they denied that the 1st defendant was the

Kartha of the family. They admitted that the suit property

was an ancestral property and they were the absolute

owners. They also denied the agreement to sell and receipt

of the advance. They further took a plea that they agreed

to sell the property for a sum of Rs.1,70,000/- at the

first instance and the deed of the agreement was typed and

signed by the parties and the earnest money in sum of

Rs.10,000/- was paid and they were willing to sell the

property for a sum of Rs.1,70,000/- and as the plaintiff

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did not pay the balance sum, therefore, the sale deed could

not be executed. The defendant No.4 was a minor when the

suit was instituted, but became major during the pendency

of the suit and he denied that the defendant No.1 was his

natural guardian. The defendant No.5 also claimed 1/5th

share in the property. The defendant No.1 died during the

pendency of the suit and his other daughter was brought on

record as defendant No.1(a). She also filed a written

statement denying the agreement of sale. Defendant No.6

contended that there was no collusion between the

defendant Nos. 6 to 15 and defendant Nos.1 to 4. They also

contended that the agreement cannot be enforced as against

them as defendant Nos.1 to 5 were never in possession of

the suit property. Defendant Nos.6 to 15 claimed the

ownership by way of adverse possession and claimed to be

in such exclusive possession from the year 1957 onwards

with the knowledge of defendant Nos.1 to 5. Therefore, it

was contended that the agreement of sale was not

enforceable because of the laches on the part of the

plaintiff. On the basis of these pleadings, nine issues

were framed and then three more additional issues were

framed. The Trial Court after analyzing the evidence

decreed the suit and directed the defendant Nos. 1(a) to 5

to execute the sale deed in favour of plaintiff by

receiving the balance consideration of Rs.1,10,000/- and

hand over possession, at