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2011 DIGILAW 162 (KAR)

K. R. Pavadiyappa v. M. Ranaaiah

2011-02-08

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The appellant in RSA 165/2004 has filed this appeal challenging the Judgment and Decree, partly allowing the appeal in R.A. No. 147/1996 and both the appellants in the other two appeals have challenged the Judgment and Decree of the lower appellate Court in R.A. No. 93/2003 partly allowing the appeal of the 1st respondent, and the dismissal of the suit in O.S. No. 299/1998. 2. All these matters pertain to the same subject matter and as the parties are common, they are taken together for consideration. 3. The facts relevant for the purpose of these appeals are as under: For the purpose of convenience, the parties are referred by their names as the facts would be clear. K.R. Pavadiyappa instituted the suit in O.S. No. 84/1985 against M. Ramaiah in the trial Court, seeking the relief of injunction alternatively for possession of the suit properties. The suit properties are Sy. No. 11/5 measuring 38 guntas assessed at Rs. 2.61 and Sy. No. 11/6 measuring 2 acres 3 guntas assessed at Rs. 2.38 including phut kharab of 1 gunta with the boundaries mentioned in the plaint. These properties were owned by one C. Veerappa and it is on 12.6.1972 that K.R. Pavadiyappa and K.V. Subbaiah jointly purchased the said properties for a total consideration of Rs. 20,000.00 under a registered Sale Deed. Each of them contributed a sum of Rs. 10,000.00 and they were to be in joint possession of the suit properties. K.R. Pavadiyappa and K.V. Subbaiah invested huge funds to improve the lands and they also sunk a well in Sy. No. 11/5, purchased a pump-set machine, installed the same in the land and they fenced the boundaries by fixing stone pillars around the suit schedule lands with barbed wire. They also raised loan from PLD Bank, mortgaged the suit properties by a registered Mortgage Deed dated 22.1.1973 and the original Title Deeds were deposited with the PLD Bank. They invested an amount of Rs. 19,000.00 and improved the land in the year 1973 and they continued in joint possession of the suit properties and it was K.R. Pavadiyappa’s father who was looking after the agriculture and cultivation of these lands. They invested an amount of Rs. 19,000.00 and improved the land in the year 1973 and they continued in joint possession of the suit properties and it was K.R. Pavadiyappa’s father who was looking after the agriculture and cultivation of these lands. So, when K.R. Pavadiyappa and K.V. Subbaiah were in joint possession of the suit lands, K.V. Subbaiah filed a suit for specific performance of contract against K.R. Pavadiyappa in O.S. No. 939/1974 before the trial Court alleging that K.R. Pavadiyappa has entered into an Agreement of Sale in favour of K.V. Subbaiah to the extent of half share in the suit lands. K.R. Pavadiyappa contested the suit and ultimately it was dismissed on 11.8.1982. K.V. Subbaiah preferred an appeal in R.A. No. 119/1982 and the same was dismissed as settled out of Court on 28.2.1985. When the appeal was pending, the said K.V. Subbaiah, the co-owner instituted O.S. No. 124/1983 seeking permanent injunction based on the alleged Agreement of Sale dated 25.1.1974 though the earlier suit in O.S. No. 939/1974 came to be dismissed. In the said suit, K.V. Subbaiah filed an application for temporary injunction and the said application came to be dismissed. When R.A. No. 119/1982 preferred by K.V. Subbaiah against the Judgment and Decree in O.S. No. 939/1974 was pending, he approached K.R. Pavadiyappa expressing his intention to sell his half share in the suit properties in favour of K.R. Pavadiyappa, who agreed to purchase the joint half share of K.V. Subbaiah and accordingly, a registered Sale Deed dated 25.2.1985 was executed by K.V. Subbaiah in favour of K.R. Pavadiyappa for a sale consideration of Rs. 35,000.00. So, since from this date K.R. Pavadiyappa claims to be in exclusive possession of the suit lands. K.R. Pavadiyappa developed the land again after he became absolute owner of the suit properties and it fetched about Rs. 80,000.00 at the time when the suit came to be instituted. The names of the K.R. Pavadiyappa and K.V. Subbaiah were entered in the record of rights on the basis of the Sale Deed dated 12.6.1972 and after 25.2.1985 K.R. Pavadiyappa submitted an application to the revenue authorities to enter his name in the records. There was also a Rectification Deed executed by K.V. Subbaiah in favour of K.R. Pavadiyappa for correcting boundaries of the suit properties. There was also a Rectification Deed executed by K.V. Subbaiah in favour of K.R. Pavadiyappa for correcting boundaries of the suit properties. It is the submission of K.R. Pavadiyappa that K.V. Subbaiah after the sale of the properties, joined hands with C. Veerappa, the erstwhile owner and in collusion with M. Ramaiah, the defendant and in order to defeat the rights of K.R. Pavadiyappa, started causing trouble and interfering with the peaceful possession and enjoyment of the suit lands. In this regard, K.R. Pavadiyappa filed a complaint before the Police on 3.4.1985 alleging interference by the M. Ramaiah at the instance of K.V. Subbaiah and C. Veerappa. M. Ramaiah started asserting his rights in the suit properties on the basis of a decree in his favour and K.R. Pavadiyappa claims that he was not aware of any decree affecting his rights in the suit properties. If any decree is obtained, it is in collusion with K.V. Subbaiah, C. Veerappa and M. Ramaiah and that he is not bound by any such decree amongst them. On 3.4.1985, M. Ramaiah with his supporters and with the help of the Police interfered with the peaceful possession and enjoyment of the suit properties and K.R. Pavadiyappa resisted the act of M. Ramaiah, there was threat of dispossession. Therefore, he was constrained to institute the suit for permanent injunction. During the pendency of this suit, K.R. Pavadiyappa claims to have been dispossessed by M. Ramaiah and, therefore, sought for the relief of possession by seeking an amendment to the plaint. He contends that M. Ramaiah is a powerful person and that he is cultivating the lands with the assistance of his brother-in—law and in the circumstances, sought for the relief of permanent injunction, alternatively for possession of the suit properties. In O.S. No. 299/1998 it is M. Ramaiah’s claim that K.R. Pavadiyappa has no right, title or interest of whatsoever type in the suit properties and that it was K.V. Subbaiah, who was the exclusive owner in possession of the entire suit lands was managing the lands all along and fenced the lands by borrowing money from the PLD Bank as K.R. Favadiyappa was not an agriculturist and was working in BEL Factory, has no authority to purchase an agricultural land. He also denied the execution of the Sale Deed by K.V. Subbaiah in favour of K.R. Pavadiyappa and contends that K.V. Subbaiah, who was the exclusive owner of the suit properties entered into an Agreement of Sale with him on 7.12.1982 and received a sum of Rs. 6,000.00 as part of the sale consideration, which was fixed at Rs. 46,000.00 and put M. Ramaiah in possession of the entire suit lands and since then he claims to be in peaceful possession and enjoyment of the suit properties. He also claims that K.V. Subbaiah further received a sum of Rs. 10,000.00 towards part of the sale consideration on 26.4.1983 and K.V. Subbaiah was to receive the balance of Rs. 30,000.00 and execute a Sale Deed in his favour. He further claimed that the Sale Deed executed on 25.2.1985 is a false and fictitious document and got created in collusion with K.V. Subbaiah and, therefore, his rights in the suit properties are not deprived by the alleged Sale Deed. He also submits that after the Agreement of Sale, he filed an application to the revenue authorities to enter his name in the records and that application is pending. He has denied all the allegations of threat and dispossession, asserting that he is in possession of the suit properties. He also denied the dispossession of the suit properties during the pendency of the suit. It is also his submission that in the month of February 1985, K.V. Subbaiah tried to forcibly evict him from the suit property with the help of goondas. In the circumstances, he [M. Ramaiah] filed a suit in O.S. No. 708/1985 seeking the relief of injunction against K.V. Subbaiah and his followers. The said suit came to be decreed and, therefore, he claims that K.R. Pavadiyappa has mislead the Court in obtaining a temporary injunction and taking disadvantage of the said Order, he is interfering with his possession. It is also his contention that the suit for bare injunction is not maintainable and the Court Fee paid is not proper. On these grounds he has sought for dismissal of the suit in O.S. No. 84/1985. It is also his contention that the suit for bare injunction is not maintainable and the Court Fee paid is not proper. On these grounds he has sought for dismissal of the suit in O.S. No. 84/1985. M. Ramaiah [defendant in O.S. No. 84/1985], who claims to have entered into an Agreement of Sale with K.V. Subbaiah instituted O.S. No. 1103/1988, inthe City Civil Court seeking the relief of specific performance of the contract against K.R. Pavadiyappa [plaintiff in O.S. No. 84/1985] and K.V. Subhaiah with whom he entered into a Contract of Sale. There was an objection with regard to the jurisdiction of the Court and the Court ordered that it has no jurisdiction. In the circumstances, the plaint was returned for proper presentation to the Civil Judge, Bangalore Rural and it was re-numbered as O.S. No. 299/1998. So, M. Ramaiah, i.e., the defendant in O.S. No. 84/1985 is the plaintiff in O.S. No. 299/1998, whereas K.V. Subbaiah is the 1st defendant and K.R. Pavadiyappa, i.e., the plaintiff in O.S. No. 84/1985 is the 2nd defendant. In this suit, M. Ramaiah claims that K.V. Subbaiah entered into an Agreement of Sale with him on 7.12.1982 for a Sale Consideration of Rs. 46,000.00 and K.V. Subbaiah received a sum of Rs. 6,000.00 on the date of the Agreement and Rs. 10,000.00 on 26.4.1983 and that despite his willingness to pay the remaining amount of Rs. 30,000.00, the 1st defendant, who is the exclusive owner of the suit properties did not execute the Sale Deed. The plaint averments reveal that a notice was issued by M. Ramaiah on 22.03,1985 calling upon K.V. Subbaiah to execute the Sale Deed receiving the balance sale consideration. The said notice was replied vide reply notice dated 28.3.1985 and there was a rejoinder dated 4.4.1985 to the notice issued by M. Ramaiah and the said rejoinder was replied by K.V. Subbaiah vide reply notice dated 10.4.1985. So, it is the claim of M. Ramaiah that the 1st defendant K.V. Subbaiah was the exclusive owner of the property and that the 2nd defendant K.R. Pavadiyappa has no right, title or interest of whatsoever type in the said properties. He further claims that the defendants in collusion with each ! other got created false documents and causing interference in his peaceful possession. He further claims that the defendants in collusion with each ! other got created false documents and causing interference in his peaceful possession. He came to know about the Sale Deed after receipt of summons in O.S. No. 84/1985 and filed an application for vacating the temporary injunction. As there was a threat of his dispossession by K.V. Subbaiah, he instituted O.S. No. 708/1985 against K.V. Subbaiah and the said suit was decreed on 7.3.1985. It was an ex parte decree and the 1st defendant K.V. Subbaiah filed Miscellaneous Petition No. 257/1985, which was pending on the date when the suit came to be instituted. Further, he pleads that the 2nd defendant K.R. Pavadiyappa is a benami title holder and was never in possession of the suit properties and to defeat the Agreement of Sale dated 7.12.1982, the 1st defendant-K.V. Subbaiah colluded with the 2nd defendant-K.R. Pavadiyappa and got created a Sale Deed, which is not binding on his interest in the suit properties. So, it is under these circumstances he submits that the cause of action arises after institution of the suit in O.S. No. 84/1985 by the 2nd defendant-K.R. Pavadiyappa and claiming that he is entitled to the specific performance of contract of sale dated 7.12.1982 and sought for the relief of specific performance directing the 1st defendant-K.V. Subbaiah to execute and register a Sale Deed in terms of the Agreement dated 7.12.1982 by receiving balance sale consideration. Alternatively, he also prayed to refund the amount of Rs. 16,000.00, the advance sale consideration paid with interest at 18%. He also sought for a declaration that the Sale Deed dated 25.2.1985 executed by defendant No. 1-K.V. Subbaiah in favour of defendant No. 2-K.R.Pavadiyappa is null and void and it does not bind him. On these grounds, he instituted the suit against K.V. Subbaiah and K.R. Pavadiyappa [plaintiff in O.S, No. 84/1985]. The 1st defendant-K.V. Subbaiah in his written statement contends that the suit is barred by limitation. It is also his contention that he never executed any Sale Agreement in favour of M. Ramaiah and that M.Ramaiah in collusion with the erstwhile owner C. Veerappa has got created some false and fictitious documents. Therefore, he claims that the plaintiff-M. Ramaiah is not entitled to the specific performance of contract. He has denied about receipt of Rs. 6,000.00 and also Rs. Therefore, he claims that the plaintiff-M. Ramaiah is not entitled to the specific performance of contract. He has denied about receipt of Rs. 6,000.00 and also Rs. 10,000.00 as part of the sale consideration said to have been paid and further claims that there is no contract between himself and the plaintiff M. Ramaiah. It is his specific case that himself and the 2nd defendant-K.R. Pavadiyappa are the joint owners, having undivided half share in the suit schedule properties and in respect of his share in the suit properties, he has executed the Sale Bead in favour of K.R.Pavadiyappa-2nd defendant, who is the plaintiff in O.S, No,84/1985 on 25.2.1985 for avaluable consideration of Rs. 35,000.00, He claims that the 2nd defendant-K.R. Pavadiyappa is a bona fide purchaser of his share in the suit properties and he has been in possession of the suit properties since from the date of the Sale Deed. He also submits that the suit in O.S. No. 708/1985 was instituted clandestinely by the plaintiff-M. Ramaiah though he had the knowledge that the 1st defendant-K.V. Subbaiah had sold his share in the suit properties to the 2nd defendant-K.R. Pavadiyappa. So, claiming that the alleged Sale Agreement dated 7.12.1982 is forged and manipulated document, sought for dismissal of the suit. He submits that in O.S. No. 939/1974, the Court has held that the 2nd defendant-K.R. Pavadiyappa was the owner of half of the schedule properties and that the decision has been upheld in R.A. No. 119/1982. On these grounds, he has sought for dismissal of the suit. The 2nd defendant-K.R. Pavadiyappa has filed his written statement re-iterating the plaint averments in O.S. No. 84/1985. In substance, it is his case that himself and the 1st defendant-K.V. Subbaiah purchased the suit properties under a registered Sale Deed dated 12.6.1972 for a consideration of Rs. 20,000.00 and that they were joint owners and that K.V. Subbaiah has sold his share in the suit properties in his favour under a registered Sale Deed dated 25.2.1985 and since then he is in possession of the suit properties. He has also denied about the Sale Agreement between the plaintiff-M. Ramaiah and the 1st defendant-K.V. Subbaiah, handing over possession of the suit properties etc. and states that the document said to have been executed is forged and created one. He has also denied about the Sale Agreement between the plaintiff-M. Ramaiah and the 1st defendant-K.V. Subbaiah, handing over possession of the suit properties etc. and states that the document said to have been executed is forged and created one. So also it is his claim that the suit is barred by time and that he is a bona fide purchaser for valuable consideration. He claims that the decree in O.S. No. 708/1985 is not binding upon him. So, in addition to the grounds taken by the 1st defendant K.V. Subbaiah, he claims that there is no cause of action for the suit and on these grounds he has sought for its dismissal. On the basis of the pleadings in O.S. No. 84/1985, the trial Court has framed the following issues: (1) Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule properties? (2) Whether the plaintiff proves the interference? (3) Whether the suit for bare injunction is not maintainable? (4) To what Order and Decree the plaintiff is entitled? Addl. Issues framed on 12.9.1986: (1) Whether this Court has no territorial jurisdiction? Addl. Issues framed on 27.11,1989: (1) Whether the plaintiff proves that he is dispossessed from the suit schedule property? (2) Whether the plaintiff is entitled for possession? During the trial of the suit, the plaintiff K.R. Pavadiyappa examined himself as P.W.I and K.V. Subbaiah as P.W.2 and in their evidence got marked documents Exs. P1 to 40. The defendant M. Ramaiah examined himself as D.W.I and C. Veerappa, the erstwhile owner as D.W.2 and in their evidence got marked the documents Exs. D1 to 15. During the trial of the suit, the plaintiff K.R. Pavadiyappa examined himself as P.W.I and K.V. Subbaiah as P.W.2 and in their evidence got marked documents Exs. P1 to 40. The defendant M. Ramaiah examined himself as D.W.I and C. Veerappa, the erstwhile owner as D.W.2 and in their evidence got marked the documents Exs. D1 to 15. The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record, dismissed the suit and aggrieved by the Judgment and Decree, K.R. Pavadiyappa, i.e., the plaintiff preferred R.A. No. 147/1996, wherein the first appellate Court after hearing the learned counsel for the parties and on appreciation of the material on record, partly allowed the appeal holding that the plaintiff K.R. Pavadiyappa is entitled to have possession of his extent of share in the suit schedule properties from the defendant M. Ramaiah in a separately instituted suit for partition between himself and the defendant or by mutual agreement as determined by the Court in R.A. No. 93/2003 and aggrieved by the Judgment and Decree by the lower appellate Court, the plaintiff-K.R. Pavadiyappa approached this Court in RSA No. No. 165/2004. On the basis of the pleadings in O.S. No. 299/1998, the trial Court has framed the following issues: 1. Whether plaintiff proves that defendant No. l being the absolute owner of the suit schedule properties has executed Sale-Agreement dated 7.12.1982 agreeing to sell suit schedule properties to plaintiff and has received total of Rs. 16,000.00 towards part payment? [Recasted] Issue No. 1 is recasted on 21st February, 2003 as follows: 1. Whether plaintiff proves that first defendant being the absolute owner of the suit schedule properties has executed Sale Agreement dated 7.12,1982 agreeing to sell suit schedule properties to plaintiff and has received of Rs. 6,000.00 on the date of agreement towards part performance? 2. Whether plaintiff further proves that Sale Deed dated 25.2.1985 is not binding on him? 3. Whether plaintiff further proves that he was and is ready and willing to perform his part of contract? 4. Whether plaintiff is entitled for relief of specific performance of agreement? 5. Alternatively whether plaintiff is entitled to recover Rs. 16,000.00 with interest at 18% from defendant No. 1? 6. Whether defendant proves that suit is barred by limitation? 7. To what Decree or order parties entitled? Additional issue framed on 21st February 2003: 1. 4. Whether plaintiff is entitled for relief of specific performance of agreement? 5. Alternatively whether plaintiff is entitled to recover Rs. 16,000.00 with interest at 18% from defendant No. 1? 6. Whether defendant proves that suit is barred by limitation? 7. To what Decree or order parties entitled? Additional issue framed on 21st February 2003: 1. Whether plaintiff proves the payment of Rs. 10,000.00 to first defendant on 26.4.1983 towards part payment of the agreement? Thereafter, M. Ramaiah, the plaintiff was examined as P.W.I, the erstwhile owner C. Veerappa has been examined as P.W.2 and in their evidence documents Exs. P1 to 12 were marked. The 1st defendant K.V. Subbaiah was examined as D.W.I, the 2nd defendant-K.R. Pavadiyappa in this suit was examined as D.W.2 and in their evidence Exs. D1 to 29 were marked. The trial Court on appreciation of the material on record dismissed the suit for specific performance and aggrieved by the Judgment and Decree, M. Ramaiah, the plaintiff filed an appeal in R.A. No. 93/2003 and the lower appellate Court allowed the appeal in part directing the specific performance of the contract in respect of the share of K.V. Subbaiah to be worked out in separate suit with a condition that he should pay the consideration amount paid by K.R. Pavadiyappa to K.V. Subbaiah as mentioned above and both the defendants were directed to execute the Sale Deed within 3 months from the date of decree by receiving the consideration amount in the said agreement. It also held that the plaintiff is entitled to have a portion of the suit property of the 1st defendant, i.e., undivided share by mutual agreement. Aggrieved by the Judgment and Decree of the lower appellate Court, K.V. Subbaiah, the 1st defendant preferred RSA No. 148/2004 and the 2nd defendant K.R. Pavadiyappa has filed RSA No. 149/2004. In RSA Nos. 148 and 149/2004, this Court has framed the following substantial questions of law for consideration: (1) Whether the lower appellate Court has committed a legal error in granting the relief of specific performance notwithstanding the factum of non-production of original Agreement at any point of time in the case on hand? (2) Whether the Orders of the Courts below are acceptable one in the absence of no explanation with regard to non-production of the original Agreement of Sale? (2) Whether the Orders of the Courts below are acceptable one in the absence of no explanation with regard to non-production of the original Agreement of Sale? (3) Whether the impugned Orders are contrary to Section 73 of the Indian Evidence Act? (4) Whether the finding of the learned Appellate Court is with regard to limitation in the case on hand? Modified as follows V.C.O. date 14.1.2011: Whether the finding of the lower appellate Court with regard to the limitation is just and appropriate? (5) Whether the lower appellate Court is justified in granting the relief of part performance of the contract in terms of Section 12 of the Specific Relief Act? In R.S.A. No. 165/2004 this Court has framed the following substantial question of law for consideration: Whether the Courts below were justified in not granting the relief of possession when the suit of the respondent/defendant in O.S. No. 1103/1988 which is re-numbered as O.S. No. 299/1998 has been dismissed? 4. I have heard the learned counsel for the parties. 5. It is the contention of the learned counsel for K.R. Pavadiyappa that he was the joint owner with K.V. Subbaiah and they purchased the suit schedule lands for a consideration of Rs. 20,000.00 under the registered Sale Deed dated 12.6.1972. Further, it is submitted that when the co-owner K.V. Subbaiah sold his half undivided share in the suit property in favour of K.R. Pavadiyappa, who becomes an absolute owner of the suit property and, therefore, he contends that the execution of the Sale Agreement, if any by K.V. Subbaiah in favour of M. Ramaiah is illegal and void. It is further contended that the suit property was mortgaged by both K.R. Pavadiyappa and K.V. Subbaiah to FLD Bank and they raised loan of Rs. 19,000.00 and it was invested for the purpose of improvement of the land. They sunk a well and fenced the land by fixing stone pillars and that it was K.R. Pavadiyappa, who was cultivating the land all along. So, also, it is his contention that when K.V. Subbaiah did not execute any Sale Agreement in favour of M. Ramaiah, he is not entitled to the specific performance of contract and that the trial Court was justified in dismissing his suit. So, also, it is his contention that when K.V. Subbaiah did not execute any Sale Agreement in favour of M. Ramaiah, he is not entitled to the specific performance of contract and that the trial Court was justified in dismissing his suit. It is his further contention that the suit for specific performance of contract was barred by limitation and there is ample material to prove that the document is forged and the original was not produced before the Court and it reflects the negligence on the part of M. Ramaiah and Section 73 of the Evidence Act will not be attracted. In the circumstances, the period of pendency of the suit in O.S. No. 1103/1988, in the City Civil Court for about 10 years despite the finding given by the Rural Court that it has jurisdiction, cannot be excluded for the purpose of limitation in the suit for specific performance of contract. So, he submits that there is no passing of sale consideration as there is no Agreement and, therefore, the lower appellate Court committed an error in granting the relief of specific performance to an extent of half undivided share of K.V. Subbaiah in the suit properties. 6. The learned counsel for K.V. Subbaiah submits that no Sale Agreement was executed in favour of M. Ramaiah and that M. Ramaiah created a false and fictitious document in collusion with C. Veerappa, the erstwhile owner of the suit properties and filed the suit. He would further contend that M. Ramaiah is not entitled to the specific performance of contract as there is no Sale Agreement and no passing of the sale consideration. Therefore, he submits that the trial Court was justified in dismissing the suit for specific performance of contract and the lower appellate Court committed an error in directing him to execute a Sale Deed to an extent of half of undivided share in the suit properties. He also submits that he has executed a Sale Deed in favour of K.R. Pavadiyappa on 25.2.1985 for a valuable consideration of Rs. 35,000.00 and since then the said K.R. Pavadiyappa is in possession of the suit property. 7. The learned counsel for M. Ramaiah submits that the original Agreement was destroyed by the Court when he had produced the same in O.S. No. 708/1985 and the certified copy of the same was produced. 35,000.00 and since then the said K.R. Pavadiyappa is in possession of the suit property. 7. The learned counsel for M. Ramaiah submits that the original Agreement was destroyed by the Court when he had produced the same in O.S. No. 708/1985 and the certified copy of the same was produced. In view of the provisions of Sections 63 and 65 of the Indian Evidence Act, the secondary evidence could be accepted and as the execution of the document has been proved satisfactorily, the trial Court committed an error in dismissing the suit, whereas the lower appellate Court granted a decree to an extent of half undivided share in the properties and further that the Judgment and Decree passed by the lower appellate Court in the appeal directing to take possession of half share in the suit property is erroneous and illegal. In these circumstances, both the learned counsel have submitted for grant the reliefs sought for by the parties. 8. Now the perusal of the material placed on record reveals that one C. Veerappa was the absolute owner in possession of the suit lands prior to 1972 and he sold the suit properties to K.V. Subbaiah and K.R. Pavadiyappa under registered Sale Deed dated 12.6.1972 for a total consideration of Rs. 20,000.00. Though initially, K.V. Subbaiah disputed the share of K.R. Pavadiyappa in the suit properties, in the suit bearing O.S. No. 299/1998, he admits that he was joint owner with K.R. Pavadiyappa and that they improved the land by mortgaging the land to the PLD Bank and raising loan of Rs. 19,000.00 and that they sunk a well and fenced the land. Admittedly he has sold his half undivided share to K.R. Pavadiyappa. So, the question for consideration at the initial stage would be as to whether K.V. Subbaiah and K.R. Pavadiyappa were the joint owners or K.V. Subbaiah was the only owner of the property and whether K.R. Pavadiyappa is the benamidar. 9. On this aspect of the matter, it is relevant to state that K.V. Subbaiah has been cross-examined as a witness on behalf of the plaintiff-K.R. Pavadiyappa in O.S. No. 84/1985 and the evidence reveals that both of them purchased the suit lands jointly by paying an amount of Rs. 20,000.00, Rs. 7,500.00 was paid towards the encumbrance and the remaining amount was paid to C. Veerappa, the vendor. 20,000.00, Rs. 7,500.00 was paid towards the encumbrance and the remaining amount was paid to C. Veerappa, the vendor. He has produced the Sale Deed at Ex. P16. The perusal of the document reveals that the property was purchased by both K.V. Subbaiah and K.R. Pavadiyappa and the name of K.R. Pavadiyappa has been inserted in between two lines and the original Sale Deed has also been produced including the certified copy of the said document. It may be that while writing the document, initially the name of K.V. Subbaiah alone was mentioned by over-sight and later to rectify the mistake the name of K.R. Pavadiyappa was included as a joint purchaser. So, as the suit properties were purchased under the registered Sale Deed dated 12.6.1972 in the name of both the persons, they would be the joint owners of the property. 10. Though counsel for M. Ramaiah contends that K.R. Pavadiyappa is a benamidar and K.V. Subbaiah is the absolute owner of the suit properties. This contention cannot be accepted in view of the fact that both P.Ws.1 and 2, i.e., K.R. Pavadiyappa and K.V. Subbaiah who are examined in the suits specifically state that they have purchased the suit property by investing their joint funds. Apart from this, it is relevant to note that the suit properties were mortgaged to PLD Bank and both these persons executed a registered Mortgage Deed and the certified copy of the same has been produced at Ex. P22. This Deed was executed on 15.1.1973,wherein both the owners mortgaged the suit properties stating that it is joint property owned by them and they raised loan of Rs. 19,000.00 to utilize the same for improvement of the lands. After the Sale Deed, the names of K.V. Subbaiah and K.R. Pavadiyappa were entered in the record of rights and the extracts have been produced at Exs. P5 and 6 in O.S. No. 299/1998 and Exs. P22 and 23 in O.S. No. 84/1985. So, when both the owners state that it was jointly purchased and possessed all along since from the date of purchase, I do not think that their evidence could be discarded only because that M. Ramaiah stated that K.R. Pavadiyappa was the benamidar, as M. Ramaiah had no personal knowledge with regard to the transaction under Ex. P16 dated 12.6.1972 and the said evidence is not acceptable. P16 dated 12.6.1972 and the said evidence is not acceptable. It is no doubt true that M.Ramaiah has examined the erstwhile owner C. Veerappa as D.W.2 in O.S. No. 84/1985. It is the specific case of K.V. Subbaiah and K.R. Pavadiyappa that C. Veerappa has joined hands with M. Ramaiah and it is in the circumstances, a false suit has been instituted in O.S. No. 299/1998 [old O.S No. 1103/1988]. D.W.2-C.Veerappa in the cross-examination admits that the name of K.R. Pavadiyappa has been entered in the Sale Deed. The perusal of his evidence reveals that he is the witness of M.Ramaiah. Having admitted the fact that the names of both these persons are in the Sale Deed, D.W.2 cannot say anything contrary to the contents of this document as he is the executor of the same and there is a specific mention of the name of K.R. Pavadiyappa as one of the purchasers along with K.V. Subbaiah. So, when both the purchasers together state before the Court that they have jointly purchased the suit properties in their names and thereafter their name was entered in the record of rights all along till the undivided share of K.V. Subbaiah was sold to K.R. Pavadiyappa on 25.2.1985, the continuance of the name of K.R. Pavadiyappa in the record of rights since 1972 to 1985 reveal that both of them are the joint owners and as such their names were entered on the basis of the Sale Deed. Furthermore, D.W.2 in his cross-examination dated 29.11.1995 states that he has executed registered Sale Deed jointly in the names of K.R. Pavadiyappa and K.V. Subbaiah and both purchasers signed the application for loan to PLD Bank for raising a loan of Rs. 19,000.00. So, this admission of D.W.2 further adds strength to the claim of both K.R. Pavadiyappa and K.V. Subbaiah. 11. It is well-established principle of law that in case if the Sale Deed is in the name of 2 persons, the presumption is that they have purchased the same jointly, unless there is any material to rebut the said presumption. The scanning of the evidence led by both the parties does not reveal any material to say that the suit property was purchased only by K.V. Subbaiah. In that view of the matter, it has to be held that the suit property was purchased jointly by K.V. Subbaiah and K.R. Pavadiyappa. The scanning of the evidence led by both the parties does not reveal any material to say that the suit property was purchased only by K.V. Subbaiah. In that view of the matter, it has to be held that the suit property was purchased jointly by K.V. Subbaiah and K.R. Pavadiyappa. To substantiate this finding, it could be remembered that K.V. Subbaiah had instituted a suit against K.R. Pavadiyappa in O.S. No. 939/1974. The certified copy of the Judgment has been produced at Ex. P39 in O.S. No. 84/1985 and it reveals that K.V. Subbaiah sought for specific performance of contract of sale said to have been executed by K.R. Pavadiyappa in his favour with regard to the half undivided share of K.R. Pavadiyappa and the said suit came to be dismissed. So there is no question of K.R. Pavadiyappa being a benamidar. 12. Aggrieved by the Judgment and Decree in O.S. No. 939/1974, K.V. Subbaiah preferred R.A. No. 119/1982 and the said appeal was disposed of as settled out of Court and the copy of the order sheet has been produced at Ex. P14 in O.S. No. 84/1985. So, even prior to the alleged Sale Agreement, said to have been executed by K.V. Subbaiah in favour of M. Ramaiah there was dispute between K.R. Pavadiyappa and K.V. Subbaiah, wherein K.V. Subbaiah himself states that K.R. Pavadiyappa is the owner to an extent of half undivided share in the suit property. The said K.R. Pavadiyappa has also produced the receipts regarding the payment of revenue at Exs. P23 to 27. That apart, the said K.V. Subbaiah had instituted suit in O.S. No. 124/1983 against K.R. Pavadiyappa and had filed an application for temporary injunction and the said application came to be dismissed on 12.9.1983. So, the finding of the Court that K.V. Subbaiah was not in exclusive possession of the suit properties would lead to an inference that they are the joint owners in possession. Reliance could be placed on the decision of this Court reported in ILR 1995 Kar. 3876 (Narayana Murthy vs. Venkateshalu), wherein this Court considering the provisions of Section 64 held that when the property is purchased in the joint names the question as to whether the source of consideration, how much of it came from the purchasers is irrelevant and inconsequential and that each co-owner is entitled to one half share. 3876 (Narayana Murthy vs. Venkateshalu), wherein this Court considering the provisions of Section 64 held that when the property is purchased in the joint names the question as to whether the source of consideration, how much of it came from the purchasers is irrelevant and inconsequential and that each co-owner is entitled to one half share. In the decision, the Sale Deed was executed in the year 1959 and it stood in the joint names. The controversy was with regard to the consideration and as to who paid how much. Now, when so far as the facts on hand are concerned, the question of consideration has no relevance, the fact that the suit properties were purchased in the joint names of K.V. Subbaiah and K.R. Pavadiyappa, it has to be held that the suit properties are the joint acquisitions of both of them. 13. Now, considering the alleged Agreement of Sale said to have been executed by K.V. Subbaiah in favour of M. Ramaiah, the plaintiff in O.S. No. 299/1998 was examined as P.W.I and the attesting witness P.W.2, who is the erstwhile owner of the suit properties to defendants 1 and 2. M. Ramaiah has produced Ex. P7, which is the certified copy of the Agreement of Sale and Ex. P8 is the certified handwritten copy of the said Agreement. It is the defence of defendant No. 1 that he never executed an Agreement of Sale in respect of the suit properties at any time and that the plaintiff-M. Ramaiah has created a false and fictitious document and on the basis of which he has filed the present suit. It is under these circumstances, it is necessary for the plaintiff to prove the execution of the Sale Agreement by K.V. Subbaiah. On this aspect of the matter, so far as Ex. P7 is concerned, it is a xerox copy and Ex. P8 is a handwritten copy, on which there are no signatures. So far as the signature of K.V. Subbaiah on Ex. P7 is concerned, as it is a xerox copy, the disputed signature at Exs. P7(c) to (e) cannot be considered for the purpose of either comparison or for examination by a Handwriting Expert. 14. So, it was necessary for M. Ramaiah to produce the original Agreement. So far as the signature of K.V. Subbaiah on Ex. P7 is concerned, as it is a xerox copy, the disputed signature at Exs. P7(c) to (e) cannot be considered for the purpose of either comparison or for examination by a Handwriting Expert. 14. So, it was necessary for M. Ramaiah to produce the original Agreement. But, it is his submission that the said document was produced in the suit instituted by him against K.V. Subbaiah in O.S. No. 708/1985 and it was marked as Ex. P1 in the said suit. He also claims that after the Judgment and Decree in O.S. No. 708/1985 and the records in the suit were secured in O.S. No. 84/1985 and this document was exhibited as Ex. P6 in the said suit. He claims that he obtained the certified copy and produced the same before the Court. Anyhow, it is relevant to note that when he produced the original document in the suit bearing O.S. No. 708/1985 it was his duty to immediately apply for return of the said document after disposal of the suit and this itself establishes that the plaintiff was not acted with care and caution. The plaintiff has produced the endorsement issued by the Court and as could be seen from Exs. P9 and 10, the endorsement and the application respectively issued by the Court, the plaintiff had applied for return of the document on 23.1.2003 and the Court issued an endorsement that the records have been destroyed. It is relevant to note that the original document was produced and marked in the evidence. Therefore, it will be kept in “A” file and it will not be destroyed by the Court, for a period of 5 years after disposal of the suit. Though there is an endorsement that the records have been destroyed, there is no specific mention as to whether the records in “A” file were destroyed or not. In the circumstances, the endorsement, which has been produced by the plaintiff is of no help. 15. Now to accept the certified copy as secondary evidence, it is necessary for tha plaintiff to establish the requirement of Section 65(c) of the Indian Evidence Act, which reacts as follows: “65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition or contents of a document in the following cases— (a) ........ Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition or contents of a document in the following cases— (a) ........ (b) ....... (c) “when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;” So, it is necessary for the plaintiff M. Ramaiah, to establish that the original document was destroyed or lost and that the destruction or loss of the document is not for his default or neglect as he was in custody of the original document. So, when he instituted the suit, at the first instance in the year 1985 seeking specific performance of contract, it was necessary for him to produce the original Sale Agreement. But, he did not do so. The plaintiff opened his eyes to get the return of this document in the year 2003, i.e., after lapse of more than 15 years and it is in such circumstances that the Court issued the endorsement Ex. P9 stating that the records in the case have been destroyed on 24.7.1999. When he was very much aware about the Agreement said to have been executed in his favour and that it has to be produced before the Court in the suit for specific performance, which was filed in the year 1988 and the original Agreement was destroyed according to the endorsement of 24.7.1999, it could be inferred that the document was very much available to the plaintiff if he applied for return much prior to 24.7.1999. When he was aware of the production of the original in the said suit and the suit came to be decreed within a few months, what made the plaintiff not to get the return of the document is not explained. In my considered opinion, it is the negligence on the part of the plaintiff and the reason is his own default and in the circumstances, the requirement of Clause 65 (c) of the Indian Evidence Act are not complied. Hence the certified copy of the Agreement produced at Exs. P7 and 8 cannot be considered as secondary-evidence and, therefore, cannot be relied upon. 16. So, if the documents, i.e., certified copies of alleged Sale Agreement-Exs. Hence the certified copy of the Agreement produced at Exs. P7 and 8 cannot be considered as secondary-evidence and, therefore, cannot be relied upon. 16. So, if the documents, i.e., certified copies of alleged Sale Agreement-Exs. P7 and 8 as secondary evidence is not accepted and when it is the defence of the 1st defendant that he had never executed any Agreement of Sale and that the plaintiff has fabricated the documents, there is a heavy duty cast upon the plaintiff to establish the execution of the document. When the handwriting or the signatures on Ex. P7, the xerox copy cannot be used for comparison of the signatures [Section 73 of the Indian Evidence Act], I am of the opinion that the plaintiff has utterly failed to establish the execution of the Sale Agreement. 17. So far as the oral evidence is concerned, the plaintiff states that he paid an amount of Rs. 6,000.00 at the time of execution of the Sale Agreement to the 1st defendant-K.V. Subbaiah and subsequently paid an amount of Rs. 10,000.00. So far as payment of Rs. 10,000.00 is concerned, there is no material on record except the oral version of P.Ws.1 and 2. There was no difficulty for the plaintiff to get a receipt at the time when he paid an amount of Rs. 10,000.00. There was no reason for him to pay the cash without obtaining receipt and when he knew that the name of the 2nd defendant K.R. Pavadiyappa was also appearing in the records. When he had the original Sale Deed or the certified copy of the same at the time of execution of the Sale Agreement, it was incumbent upon him to enquire K.R. Pavadiyappa, who was the joint owner of the suit properties with the 1st defendant-K.V. Subbaiah. He was also aware of the fact that the name of K.R. Pavadiyappa, the 2nd defendant was entered in the record of rights along with K.V. Subbaiah on the basis of the Sale Deed of the year 1972 executed by P.W.2 in this suit. So, these lapses on the part of the plaintiff makes this Court to feel that whatever that has occurred while execution of the documents is not either genuine or acceptable. 18. So far as the evidence of P.W.2 is concerned, it is the specific case of the defendant that he has colluded with the plaintiff-M. Ramaiah. So, these lapses on the part of the plaintiff makes this Court to feel that whatever that has occurred while execution of the documents is not either genuine or acceptable. 18. So far as the evidence of P.W.2 is concerned, it is the specific case of the defendant that he has colluded with the plaintiff-M. Ramaiah. So, it is only P.W.2, who has been examined to prove the contents and execution of the Sale Agreement and the perusal of the evidence of P.W.2 also reveals that it is not consistent. It is relevant to note that in the evidence of P.W.2, the stamp paper for the purpose of execution of the Sale Agreement worth Rs. 5.00 was purchased and an Agreement of Sale was executed on 7.12.1982. It is in the examination of chief itself that P.W.2 has stated so. But, as could be seen from the xerox copy of the Stamp paper and also Ex. D2, the stamp was purchased on 6.12.1982 and thereby there is a material discrepancy in the evidence of P.W.2 as regards execution of the document. When the 1st defendant has categorically denied the execution and signature on the alleged Sale Agreement, the discrepancies in the evidence do not inspire any confidence with regard to its due execution. So, except the interested version of P.W. 1, there is no material to prove the execution of the Agreement of Sale. 19. Now, to consider the question regarding limitation, it is the contention of K.R. Pavadiyappa and K.V. Subbaiah that the suit instituted for specific performance of contract in O.S. No. 2 99/1998 is not in time. Now, we have to consider Section 14 of the Limitation Act 1963, which has been extracted hereunder: “14. 19. Now, to consider the question regarding limitation, it is the contention of K.R. Pavadiyappa and K.V. Subbaiah that the suit instituted for specific performance of contract in O.S. No. 2 99/1998 is not in time. Now, we have to consider Section 14 of the Limitation Act 1963, which has been extracted hereunder: “14. Exclusion of time of proceeding bona fide in Court without jurisdiction.—(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it, (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order 23 of the Code of Civil Procedure, 1908 [5 of 1908], the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature”. 20. So, in computing the period of limitation for specific performance of contract, M. Ramaiah claims that the suit which was pending on the file of the City Civil Court was returned for proper presentation as the Court had no jurisdiction and it is his Claim that he was bona fidely prosecuting the said suit in the City Civil Court and this time will have to be excluded for the purpose of computing the period of limitation. To exclude the time, it is necessary for M. Ramaiah, to establish that he was prosecuting the suit in O.S. No. 1103/1988 in good faith, i.e., with due care and caution. If there is any sort of negligence on his part, he is not entitled to the exclusion of the time. 21. In the suit bearing O.S. No. 84/1985 pending on the file of the Additional Munsiff, Bangalore Rural, M. Ramaiah had taken up a contention that the Court had no jurisdiction to try the suit and the Court had passed an Order stating that it has the jurisdiction to entertain the suit by overruling the contention of M. Ramaiah. Though this Order was passed by the Rural Court, about 5 years prior to the presentation of the plaint in O.S. No. 299/1998, M. Ramaiah did not think of seeking return of the plaint in O.S. No. 1103/1988 on the file of the City Civil Court after the finding regarding the jurisdiction and even he did not challenge the said finding before the appellate Court or by initiating any other proceedings. When once he accepted the finding that it is the Rural Court which had the jurisdiction, he could have taken steps seeking the return of the plaint immediately and present the same in the proper Court. So, the fact that for more than 5 years after Orders in O.S. No. 84/1985 M. Ramaiah did not seek return of the plaint itself infers negligence and proves that he was not careful, cautious and diligent in prosecuting the suit in O.S. No. 1103/1988. In that view of the matter, I am of the opinion that the period in prosecuting O.S. No. 1103/1988 up to the year 1998 cannot be excluded for the purpose of computing the limitation in instituting the suit by seeking return of the plaint and presenting the same in O.S. No. 299/1998. 22. Even otherwise, it is relevant to note that so far as the sale consideration is concerned, M. Ramaiah claims to have paid an amount of Rs. 10,000.00 subsequent to the Agreement of Sale and so far as this payment is concerned, there is no receipt obtained. The oral version of the plaintiff cannot be relied upon to prove the payment of Rs. 10,000.00 when for an amount of Rs. 6,000.00 there was a recital in the Sale Agreement dated 7.12.1982. 10,000.00 subsequent to the Agreement of Sale and so far as this payment is concerned, there is no receipt obtained. The oral version of the plaintiff cannot be relied upon to prove the payment of Rs. 10,000.00 when for an amount of Rs. 6,000.00 there was a recital in the Sale Agreement dated 7.12.1982. Furthermore, it is relevant to note that having paid an amount of Rs. 6,000.00, M. Ramaiah did not take any steps to perform his part of the contract by paying the remaining amount of Rs. 40,000.00. A legal notice dated 22.3.1985 was issued by him calling upon the defendant to receive the balance amount and K.V. Subbaiah had replied the said notice on 28.3.1985, denying the execution of the Agreement of Sale and despite the denial in the year 1985, M. Ramaiah did not take any steps to institute suit immediately and he waited for a period of 3 years and then instituted the suit in O.S. No. 1103/1988 that is also in a Court having no jurisdiction to try the said suit. So, there is no material on record to prove that M. Ramaiah was ready and willing to perform his part of the contract and his inaction in payment of the remaining sale consideration for a period of about 3 years till institution of the suit in O.S. No. 1103/1988 itself leads to an inference that he was not ready and willing to perform his part of the contract. 23. Now, so far as the Judgment of the first appellate Court is concerned, though the trial Court dismissed the suit for specific performance in O.S. No. 299/1998, through a well reasoned Judgment the fist appellate Court committed an error in granting a decree with regard to the half share of R.V. Subbaiah in the suit properties and directed K.V. Susbbaiah to perform his part of the contract despite the fact that there was no evidence that M. Ramaiah was ready and willing to perform his part of the contract for the period of 3 years after issuance of the notice and also that he was negligent and was not diligent in prosecuting O.S. No. 1103/1988 in the City Civil Court. As stated supra, I do not think that the lower appellate Court was justified in granting a decree for specific performance of the contract to the extent of half share of K.V. Subbaiah by invoking Section 12 of the Specific Relief Act. 24. Under the provisions of Section 20 of the Specific Relief Act, the Court has a discretion so far as the grant of a decree for specific performance of the Agreement of Sale. When the plaintiff is seeking an equitable relief of specific performance of the Agreement of Sale, should come to the Court with clean hands and furthermore, the fact that the record of rights reveal the name of K.R. Pavadiyappa, he did not even consider to contact him at the time of entering into the alleged Agreement of Sale with K.V. Subbaiah. This shows that there were no bona fides on the part of M.Ramaiah in seeking the relief of specific performance. On this aspect of the matter, the learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in Lourdu Mari David and others vs. Louis Chinnaya Arogiaswamy and others, (1996) 5 SCC 589 wherein it has been held that it is the discretionary power of the Court, which has to be exercised depending upon the bona fides on the part of the plaintiff and in the circumstances, I have to hold that the specific performance cannot be granted. 25. Furthermore, there is no material on record to show that K.R. Pavadiyappa was aware of the Agreement of Sale alleged to have been executed by K.V. Subbaiah in favour of M. Ramaiah. Therefore, he paid an amount of Rs. 35,000.00 and at the time he was unaware of the alleged Agreement of Sale and, therefore, it could be said that he is a bona fide purchaser for valuable consideration. So, the Apex Court in the decision referred to supra has also taken into consideration this aspect. Furthermore, the learned counsel for the appellant has relied upon the decision of Kerala High Court, reported in Sanku Balakrishnan vs. Raman Kunjikrishnan and others, AIR 1982 NOC 18 (Ker.) as regards the burden of purchase the property bona fidely, it has been held that in a normal case, it would be discharged even by the party swearing in the witness-box that he was not aware of any subsisting agreement for sale. 26. 26. Now, so far as the question of limitation in O.S. No. 2 99/1998 is concerned, when the provisions of Section 14 of the Limitation Act do not apply, though the suit was instituted by M. Ramaiah in O.S. No. 1103/1988 after the expiry of 3 years from the date of refusal to perform the part of his contract, institution of the suit after return of the plaint for proper presentation in the year 1998 in O.S. No. 299/1998 is clearly barred by time. So, taking into consideration these all facts and circumstances, I am of the opinion that M. Ramaiah, the plaintiff in O.S. No. 299/1998 is not entitled to the specific performance and at the most, K.V. Subbaiah could be ordered to repay an amount of Rs. 6,000.00 with interest at 10% from the date of institution, of the suit till its payment and so far as O.S. No. 84/1985 is concerned, the plaintiff K.R. Pavadiyappa is entitled to a decree for possession as he is an absolute title holder. 27. The trial Court dismissed the suit filed by K.R. Pavadiyappa in O.S. No. 84/1985 relying upon Agreement of Sale said to have been executed by K.V. Subbaiah, in favour of M. Ramaiah dated 7.12.1982. But, it did not take into consideration as regards the validity of the said Agreement and the fact that the suit filed by M.Ramaiah was dismissed initially. It is contended by the learned counsel for K.R. Pavadiyappa that during the pendency of the suit, the plaintiff was dispossessed and, therefore, he sought for possession of the property as well. Initially, the plaintiff had instituted a suit for injunction and later he sought for amendment of the plaint, seeking possession of the property and in view of the fact that there is a Sale Deed in favour of K.R. Pavadiyappa in respect of the suit properties, which is legal and valid he is entitled to the possession of the suit lands. Even the first appellate Court in both the appeals committed an error without considering the fact that there is inordinate delay in instituting the suit for specific performance of the contract and that discretion cannot be exercised in favour of the plaintiff to grant the specific performance and that the suit instituted was barred by time. Even the first appellate Court in both the appeals committed an error without considering the fact that there is inordinate delay in instituting the suit for specific performance of the contract and that discretion cannot be exercised in favour of the plaintiff to grant the specific performance and that the suit instituted was barred by time. At the same time, so far as O.S. No. 84/1985 is concerned, the Courts below committed an error relying on the Agreement of Sale dated 7.12.1982. So, taking into consideration all these circumstances, I am of the opinion that the suit in O.S. No. 84/1985 has to be decreed for possession and the suit in O.S. No. 299/1998 for specific performance has to be dismissed. In that view of the matter, I answer the substantial question of law in negative in RSA No. 165/2004 and the substantial questions of law (1) and (3) in affirmative, (2) and (4) in negative, and (5) partly in affirmative and partly in negative in RSA Nos. 148 and 149/2004. In the result, I proceed to pass the following: ORDER RSA No. 165/2004 is allowed, by setting aside the Judgment and Decree of the Courts below and the suit of the plaintiff for the relief of possession is decreed. RSA Nos. 148 and 149/2004 are allowed in part. The Judgment and Decree of the lower appellate Court in R.A. No. 93/2003 dated 31.10.2003 is set aside and the Judgment and Decree of the trial Court dismissing the suit is restored. Draw the decrees accordingly.