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2020 DIGILAW 1085 (KAR)

Mallappa S/o Shankrappa Yaligar v. Mallappa S/o Parappa Yaligar

2020-06-15

N.S.SANJAY GOWDA

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JUDGMENT : 1. The plaintiff is in second appeal. 2. The plaintiff filed a suit seeking to enforce an agreement of sale dated 27.03.1982 and as a consequence for a direction to the defendant Nos.1 and 2 to execute a sale deed in respect of the suit property. 3. It was the case of the plaintiff that the suit property bearing Sy.No.76/3 measuring 5 acres 01 gunta originally belonged to Parappa (father of defendant Nos.1 and 2) and Parappa had given the suit property to the plaintiff for cultivation and he had also taken some money. It was his case that Parappa had expressed his intention to dispose of the suit property and the plaintiff being his nearest relative had agreed to purchase the suit property and accordingly Parappa had executed an agreement of sale, whereby he agreed to sell the property for a sum of Rs.10,000/-and the said Rs.10,000/-had also been paid to Parappa. 4. He contended that on receipt of the entire sale consideration, the agreement was executed and possession was also delivered. 5. It was stated that after Parappa died, the defendant had filed a suit in O.S.No.143/1995 seeking for declaration of the title and also for injunction and during the pendency of the said suit, defendant Nos.1 and 2 had assured him that they would pay a sum of Rs.50,000/-in respect of the suit land if he were to admit their ownership. He stated that believing those words, he had signed the compromise petition and accordingly O.S.No.143/1995 ended in compromise. 6. However, he stated that the defendant refused to pay Rs.50,000/-as agreed orally and this constrained him to file a suit in O.S.NO.97/1999 for setting aside the compromise decree passed in O.S.NO.143/1995. He stated that the said suit was dismissed. 7. However, the plaintiff stated that he possessed rights by virtue of the agreement of sale deed dated 27.03.1992 executed by Parappa and he could therefore seek for enforcement of the said agreement and he had therefore filed the suit. 8. This suit was contested by the defendants. Defendant No.1, whose defence was adopted by the defendant No.2 denied the entire averments of plaint except admitting that his father was Parappa and regarding filing of the earlier two suits. 9. The defendant took up a specific stand that no agreement of sale dated 27.031982 had been executed in favour of the plaintiff. Defendant No.1, whose defence was adopted by the defendant No.2 denied the entire averments of plaint except admitting that his father was Parappa and regarding filing of the earlier two suits. 9. The defendant took up a specific stand that no agreement of sale dated 27.031982 had been executed in favour of the plaintiff. He stated that in view of the compromise decree in O.S.No.143/1995, whereby the plaintiff himself had agreed that the defendant were the owners, the present suit could not be maintained. He further stated that since the subsequent suit impugning the compromise decree passed in O.S.No.143/1995, i.e. in O.S.No.97/1999 ended in a dismissal on merits, the claim of the plaintiff for specific performance could not be maintained. 10. The Trial Court on consideration of the evidence adduced before it, recorded a clear finding of fact that the plaintiff had failed to establish that Parappa the father of defendant Nos.1 and 2 had executed an agreement of sale and had received a sum of Rs.10,000/-and had delivered possession. The Trial Court also recorded a finding that in view of the compromise in O.S.No.143/1995 and the dismissal of O.S.No.97/1999, the present suit for specific performance cannot be maintained. Accordingly, the Trial Court dismissed the suit. 11. In appeal, the Appellate Court on re-appreciation of the entire evidence concurred with the findings recorded by the Trial Court. The Appellate Court took note of the fact that in O.S.No.143/1995, there was a clear admission by the plaintiff that defendant Nos.1 and 2 were the owners of the property and therefore the subsequent suit seeking for specific performance of an agreement of sale of the year 1982 i.e. prior to the filing of O.S.No.143/1995 could not be maintained. The Appellate Court also took note of the fact that the suit for enforcing of an agreement dated 27.03.1982 was being filed after a period of 25 years, in the year 2007, and this was clearly barred by limitation. The Appellate Court accordingly dismissed the appeal. 12. It is against this concurrent finding that this second appeal has been filed. 13. The plaintiff does not dispute the fact that he entered into compromise decree in O.S.No.143/1995 in which he clearly admitted the ownership by defendants No.1 and 2. He also admitted that the subsequent suit filed by him in O.S.No.97/1999, whereby he challenged the compromise decree was also dismissed on merits. 13. The plaintiff does not dispute the fact that he entered into compromise decree in O.S.No.143/1995 in which he clearly admitted the ownership by defendants No.1 and 2. He also admitted that the subsequent suit filed by him in O.S.No.97/1999, whereby he challenged the compromise decree was also dismissed on merits. Thus, the plaintiff clearly admitted in O.S.No.143/1995, i.e. nearly 13 years after the execution of the alleged agreement of sale, the defendants were the owners of the suit property. In the said proceedings i.e. O.S.No.143/1995 he did not put forth any plea of an agreement of sale. It is therefore clear that the plaintiff was making speculative claims over the suit property. Having conceeded the ownership of the plaintiffs in O.S.No.143/1995, the plaintiff could not lay a claim over the suit property on the basis of an agreement of sale. 14. In my view, both the Courts have rightly come to the conclusion, on appreciation of the entire evidence, that plaintiff had been unable to establish that an agreement of sale had been executed in his possession and that he was bound by the compromise decree that he had entered into. 15. In my view, there is no question of law, much less, a substantial question of law arising for consideration in this appeal and accordingly the appeal is dismissed. In view of the dismissal of the appeal, IA.No.2/2012 does not survive for consideration.