1 O.S.

1079/2011

IN THE COURT OF THE III ADDL. CIVIL JUDGE &

J.M.F.C TUMAKURU.
PRESENT: Sri. B.N.Ramesh Babu, B.A., LL.M.

III Addl. Civil Judge& JMFC

Tumakuru.

Dated this the 16th day of March, 2019.

O.S.1079/2011.

Plaintiff : Syed Zilani @ Zilani

S/o late Zyed Ameer Ahamad,
Aged about 50 years,
R/o. Behind Kannika School,
Veerasagara,
Tumkur.

(By Sri H.V.Ranganatha Reddy,

Adv.,)

­Vs­

Defendant/s : Khaja Mansur Ahamad Khan

S/o. Jabber Khan Saheb,
Major, Ragi Mission road,
Veerasagara 1st Cross,
Nazarabad,
Tumkur.

(Sri. Abdul Munaff., Adv.)

Date of institution of the suit : 08­09­2011

 2 O.S.1079/2011

Nature of the suit : Specific

Performance of
Contract

Date of recording of evidence : 07­01­2013

Date on which the judgment

was pronounced : 16­03­2019

Total Duration : Years Months Days

07 06 08

(B.N.Ramesh Babu)
III Addl. Civil Judge
Tumakuru.

JUDGEMENT

The plaintiff has filed this suit against the defendant for
the relief of Specific Performance of Contract by directing the
defendant to execute registered sale deed in favour of plaintiff
in respect of suit schedule property in pursuance of sale
agreement dated 13­8­1997 and such other reliefs.

2. The brief facts of the plaintiff’s case;

The defendant is the owner of the suit schedule

property. That on 13­8­1997 the defendant has approached
the plaintiff and offered to sell the suit schedule property for
his legal necessity and the plaintiff has agreed to purchase the
same. After negotiations, the sale price of the schedule
 3 O.S.1079/2011

property was fixed at Rs.5000/­. Accordingly, on the same

day, the defendant has executed an agreement of sale in
favour of the plaintiff agreeing to sell the schedule property for
Rs.5000/­ and on the same day, the defendant has received
the entire sale consideration of Rs.5000/­ from the plaintiff in
the presence of the witnesses to the sale agreement and
delivered possession of the schedule property to the plaintiff.
Since then the plaintiff has been in possession and enjoyment
of the suit property. Further stated that, in the sale
agreement, the defendant has agreed to execute registered sale
deed in favour the plaintiff in respect of the suit schedule
property as and when the plaintiff requires. Since the date of
sale agreement, the plaintiff has been demanding and
requesting the defendant to execute registered sale deed in
respect of the schedule property, but the defendant has
dodging the same on one or other reason. He learnt that the
defendant is contemplating to sell the schedule property to
somebody for higher price. Hence, the plaintiff has approached
the defendant and insisted him to execute registered sale deed.
But the defendant has refused to execute the registered sale
deed as agreed upon by him. Lately, the plaintiff has got
issued legal notice to the defendants on 17­8­2011 calling
upon him to execute the registered sale deed. In spite of that,
the defendant has failed to execute registered sale deed. He is
always ready and willing to perform his part of contract, but
the defendant has failed to perform his part of contract.
Hence, the plaintiff has filed this suit.
 4 O.S.1079/2011

3. After service of summons, the defendant appeared

through his counsel and filed his written statement by denying
all the averments of the plaint. Further stated that, the
plaintiff himself has come and approach and demanded to give
a site in Sy.No.12/3, 12/4 and 12/6, bearing site No.7 i.e.,
suit schedule property as he is a houseless and site less
person and on his request the defendant has obliged and
agreed to sell the suit schedule property subject to purchase
the same before initiation of acquisition proceedings by
Tumkur Development Authority and get it a proper sale deed
well in time. But the plaintiff as on to­day has not performed
his part of contract and whereas the defendant was always
ready and willing to perform his part of contract and on the
above said terms and conditions, the defendant was executed
a alleged sale agreement dated 13­8­1997 and received the
sale consideration of Rs.5000/­ and delivered the possession
of the suit schedule property. Further contended that, TUDA
authority has initiated the acquisition proceedings and
acquired the Sy.No.12/3 measuring 0.20 guntas, 12/4
measuring 0.19 guntas and Sy.No.12/6 measuring 0.20
guntas referred in the plaint. When the TUDA authority
acquired the land under the scheme of residential purpose and
now question of execution of sale deed in terms of the sale
agreement does not arise at this juncture and the alleged sale
agreement is ineffective and not enforceable in the eye of law.
Just to quash the acquisition proceedings by TUDA authority,
 5 O.S.1079/2011

has made his all efforts skill and energy and spent huge
amount for the litigation purpose before the Hon’ble High
Court of Karnataka, by filing number of writs and writ appeal
particularly in Writ appeal No.6996/2003 (LA­RES) dated 9­6­
2011 on the file of the Hon’ble High Court of Karnataka, and
no where he was succeeded and thereby is totally become a
bankrupt (Penniless) and thus the suit filed by the plaintiff is
not sustainable in law and liable to be dismissed. The plaintiff
at no point of time was ready and willing to perform his part of
contract, whereas the defendant was always ready and willing
to perform his part of contract. Hence prays to dismiss the
suit.

4. On the basis of pleadings of both parties the following

issues have been framed by my predecessor.

1) Whether plaintiff proves that the defendant

has executed agreement of sale dated 13­
8­1997 to the plaintiff agreeing to sell the
suit schedule property for Rs.5,000/­?

2) Whether plaintiff proves that the defendant

has received the entire sale consideration
on the same day and delivered the
possession of the suit schedule property to
the plaintiff?

3) Whether plaintiff proves that he was always

ready and willing to perform his part of
contract?
 6 O.S.1079/2011

4) Whether defendant proves that the suit is

barred by time?

5) Whether defendant proves that, the suit

schedule property was acquired by TUDA
and therefore, the agreement is un­
enforceable in law?

6) Whether plaintiff is entitle for the reliefs as

prayed?

7) What order or decree?

5. In order to prove his case, the plaintiff himself is

examined before the Court as P.W­1 and got marked 3
documents as per Ex.P­1 to Ex.P­3. On the other hand
though sufficient opportunities given the defendant has not
adduced any evidence and also not got marked any
documents on his behalf.

6. Heard the arguments on plaintiff side and on the

other hand though the defendant counsel has taken number of
adjournments to argue the case, but he failed to argue the
case. Hence, arguments on defendant side taken as not
canvassed and case is posted for judgment.

7. My answers to the above said issues are as under:

 7 O.S.1079/2011

Issue No.1 : In the affirmative.

Issue No.2 : In the affirmative.

Issue No.3 : In the affirmative.

Issue No.4 : In the Negative.

Issue No.5 : In the Negative.

Issue No.6 : In the affirmative.

Issue No.7 : As per final order

for the following:

REASONS

8. Issue Nos.1 & 2: These two issues are interlinked

with one another, they are taken up together for common
discussion in order to avoid repletion of facts.

9. It is the specific case of the plaintiff that, defendant

being the owner of the suit schedule property has approached
the plaintiff on 13­8­1997 and offered to sell the suit schedule
property for his legal necessity and the plaintiff has also
agreed to purchase the same. After negotiations, the sale price
of the schedule property was fixed at Rs.5000/­. Accordingly,
on the same day, the defendant has executed an agreement of
sale in favour of the plaintiff agreeing to sell the schedule
property for Rs.5000/­. On the same day, the defendant has
 8 O.S.1079/2011

received the entire sale consideration of Rs.5000/­ from the

plaintiff in the presence of the witnesses to the sale agreement
and delivered possession of the schedule property to the
plaintiff. The defendant has agreed to execute registered sale
deed in favour the plaintiff in respect of the suit schedule
property as and when the plaintiff requires. But after the
execution of sale agreement, the defendant has dodged to
execute the sale deed in one or other reason. Hence, the
plaintiff has filed this suit.

10. On the other hand though the defendant has denied

the plaint averments but in para No.4 of the written statement
has clearly admitted that, the plaintiff himself has come and
approach and demanded to give a site in Sy.No.12/3, 12/4
and 12/6, bearing site No.7 i.e., suit schedule property as he
is a houseless and site less person. On his request the
defendant has obliged and agreed to sell the suit schedule
property subject to purchase the same before initiation of
acquisition proceedings by TUDA and get it a proper sale deed
well in time. But the plaintiff as on to­day has not performed
his part of contract on the above said terms and conditions.
Hence, prays to dismiss the suit.

11. To prove his contention, the plaintiff himself examined

as P.W­1 and produced documents Ex.P­1 to 3. The plaintiff
has produced Ex.P­3 agreement of sale dated 13­8­1997
executed by the defendant in favour of plaintiff. On perusal of
 9 O.S.1079/2011

the Ex.P­3 it clearly shows that the defendant has executed

the sale agreement in favour of the plaintiff with respect to
schedule property for Rs.5,000/­ and also received sale
consideration amount of Rs.5,000/­ from the plaintiff and
delivered the possession of the schedule property and also
agreed to execute the sale deed when the plaintiff required.
Hence, it clearly shows that, the defendant has executed sale
agreement in favour of the plaintiff on 13­8­1997 and also
received total sale consideration from the plaintiff and handed
over the physical possession of the schedule property.

12. On the other hand, the defendant has also not denied
the execution of the sale agreement and receiving of entire sale
consideration and also delivering the possession to the
plaintiff. Hence, as per Sec.58 of Indian Evidence Act admitted
facts need not be proved. Hence, I answer issue No.1 and 2 in
the affirmative.

13. Issue No.3: The plaintiff has clearly stated in his

plaint that, after execution of the sale agreement, the plaintiff
has been demanding and requesting the defendant to come
and execute registered sale deed in respect of the schedule
property, but the defendant has dodging the same in one or
other reason and he is always ready and willing to perform his
part of contract. Hence, prays to decree the suit.
 10 O.S.1079/2011

14. On the other hand, the defendant has taken

contention that the plaintiff is not always ready and willing to
perform his part of contract and already suit property has
been acquired by TUDA. Hence, prays to dismiss the suit.

15. To prove his contention that the plaintiff is always

ready and willing to perform his part of contract, the plaintiff
has produced Ex.P­1 copy of the legal notice. On perusal of
Ex.P­1 it clearly shows that the plaintiff has issued notice on
17­8­2011 to the defendant to come and execute the registered
sale deed in favour of the plaintiff with respect to suit schedule
property on the basis of the sale agreement dated 13­8­97. The
plaintiff has also produced Ex.P­2 postal acknowledgement to
show that the said notice was duly served to the defendant.
But on the other hand, the defendant has denied that the
plaintiff is not always ready and willing to perform his part of
contract. But to disprove the case of the plaintiff, the
defendant has not produced any evidence. Further in this
case, on perusal of the Ex.P­3 sale agreement clearly shows
that, as on the date of sale agreement itself the plaintiff has
paid total sale consideration amount to the defendant. Further
in the plaint also he has stated that, he has requested the
defendant to come and execute the sale deed, but the
defendant denied the same and finally he has issued legal
notice. Hence, issuance of legal notice itself shows that the
plaintiff is always ready and willing to perform his part of
contract. Hence, I answer issue No.3 in the affirmative.
 11 O.S.1079/2011

16. Issue No.4 : The defendant in his written statement

has taken specific contention that, suit is barred by limitation.
Hence, suit is not maintainable both in law and on facts.
Hence, prays to dismiss the suit. But in this case, to prove
that the suit is barred by Law of Limitation, the defendant has
not produced any document and also not stepped into the
witness box to prove his contention.

17. Further, as per Article­54 of Limitation Act, the act

prescribed 3 years as the period within which a suit for
Specific Performance can be filed. The period of 3 years is to be
calculated from the date specified in the agreement for
performance or in the absence of any such stipulation, within
3 years from the date of performance was refused. Hence, as
per as per Article­54 of Limitation Act, it clearly mentioned
that when the date is fixed for performance of contract then
the limitation to file the suit is 3 years. If no such date is fixed
for performance then limitation will be calculated when the
plaintiff has noticed that performance is refused. In this case
on perusal of Ex.P­3 it clearly shows that no time is fixed for
execution of sale deed and the defendant has agreed to execute
the sale deed whenever the plaintiff requires the sale deed.
Hence, in this case no such date is fixed for execution of the
sale deed. Admittedly as per the plaint averments, the
defendant has refused to execute the sale deed in the year
2011 and immediately he has issued legal notice to the
 12 O.S.1079/2011

defendant and filed this suit. Hence, it clearly shows that the
suit is well within the time. Hence, I answer Issue No.4 in the
Negative.

18. Issue No.5: It is the specific case of the defendant

that, the TUDA authority has initiated the acquisition
proceedings and acquired the Sy.No.12/3 measuring 0.20
guntas, 12/4 measuring 0.19 guntas and Sy.No.12/6
measuring 0.20 guntas referred in the plaint. When the TUDA
authority acquired the land under the scheme of residential
purpose and now question of execution of sale deed in terms of
the sale agreement does not arise at this juncture and the
alleged sale agreement is in effective and not enforceable in the
eye of law. Hence prays to dismiss the suit. But, to prove his
contention the defendant has not produced any document to
show that the TUDA has been acquired the schedule property
and he has also not stepped into the witness box to prove his
contention. Though in the cross­examination of P.W­1, the
P.W­1 has stated that TUDA has acquired the schedule
property, but as per the cross examination of Pw­1 he is in
possession of the schedule property by constructing the house
in the schedule property. Hence, it clearly shows that the
defendant has failed to prove that the Tuda has acquired the
schedule property. Hence, I answer issue No.5 in the negative.

19. Issue No.6: The plaintiff has filed this suit for
Specific Performance of Contract against the defendant stating
 13 O.S.1079/2011

that, the defendant being the owner of the suit schedule

property has approached the plaintiff on 13­8­97 to sell the
suit schedule property in favour of the plaintiff for Rs.5000/­
and on the same day, the defendant has executed agreement
of sale in favour of the plaintiff by receiving entire sale
consideration of Rs.5000/­ and delivered possession of the
schedule property to the plaintiff. The defendant has agreed to
execute registered sale deed in favour the plaintiff in respect of
the suit schedule property as and when the plaintiff requires.
But after execution of sale agreement the defendant has not
executed the sale deed as per the terms of the sale agreement.
Hence, the plaintiff has filed this suit. On the other hand the
defendant also not denied the execution of the sale agreement
and also receiving of sale consideration and also not denied
handing over the possession of the suit schedule property to
the plaintiff. But he has taken contention that the schedule
property has been acquired by the TUDA. Hence, the sale
agreement cannot be enforceable. But in this case, as per
Ex.P­3, the contract is taken place between plaintiff and
defendant and TUDA is not a party to the said agreement.
Moreover, though the defendant has taken contention that,
TUDA has acquired the suit schedule property, but he has not
produced any document to prove his contention. But on the
other hand, the plaintiff in his cross­examination clearly stated
that he is in possession of the suit schedule property by
constructing house. Hence, it clearly shows that he is in
possession of the schedule property by way of part
 14 O.S.1079/2011

performance of contract. Further, in this case the plaintiff is

not seeking any relief on the basis of part performance and he
is seeking specific performance of contract on the basis of sale
agreement dated 13­08­1997. In this case as per the above
discussion this court already comes to the conclusion that the
plaintiff has proved the execution of sale agreement and also
proved that he is always ready and willing to perform his part
of contract. Hence, he is entitled for the relief as sought in the
plaint. Hence, I answer issue No.6 in the affirmative.

20. Issue No.7 :­ On the basis of my reasons on issue

No.1 to 6, I proceed to pass the following;

ORDER

The suit filed by the plaintiff’s is

hereby decreed.

The defendant is hereby directed to

execute the register sale deed in favour
of the plaintiff within two months from
the date of this order. In default the
plaintiff is at liberty to get the sale deed
executed through court process.

No order as to cost.

Draw decree accordingly.

 15 O.S.1079/2011

( Dictated to the stenographer, transcribed by him, then

corrected and pronounced by me, in the open court on this the
16th day March 2019.)

(B.N.Ramesh Babu)
III Addl. Civil Judge,
Tumakuru

ANNEXURE

List of witnesses examined on behalf of the plaintiff:

P.W­1 Syed Zilani @ Zilani
List of documents marked on behalf of the plaintiff:
Ex.P.1 Copy of Notice
Ex.P­2 Postal acknowledgment
Ex.P.3 Un­registered Agreement of sale13­08­1997
List of witnesses examined on behalf of the defendant/s:
­Nil ­
List of documents marked on behalf of the defendant/s
­Nil –

(B.N.Ramesh Babu)
III Addl. Civil Judge & JMFC.
Tumakuru.