Case Note & Summary
The appellants (defendants) challenged the judgment and decree dated 30.01.2015 passed by the Senior Civil Judge, Nelamangala, in O.S. No. 82/2010, which decreed the suit for specific performance of contract in favor of the respondent (plaintiff). The plaintiff, M/s Sovereign Developers & Infrastructure Limited, filed the suit for specific performance of an agreement to sell dated 15.06.2005 allegedly executed by the defendants in respect of suit schedule property measuring 1 acre 10 guntas in Gejjigadahalli Village, Dasanapura Hobli, Bangalore North Taluk. The plaintiff claimed that the defendants agreed to sell the property for a total consideration of Rs. 1,10,00,000/-, received an advance of Rs. 10,00,000/-, and put the plaintiff in possession. The defendants denied the agreement, alleging that the signatures were forged and that they were in possession. The trial court decreed the suit, holding that the agreement was proved and that the plaintiff was in possession. The High Court reversed the judgment, finding that the plaintiff failed to prove the execution and genuineness of the agreement. The court noted that the plaintiff did not examine the attesting witnesses or the scribe, and the evidence of the plaintiff's witnesses was contradictory. The court also found that the plaintiff's possession was not established; rather, the defendants were in possession. Consequently, the appeal was allowed, and the suit was dismissed.
Headnote
A) Specific Performance - Agreement to Sell - Burden of Proof - The plaintiff must prove the execution and genuineness of the agreement to sell. In this case, the plaintiff failed to examine the attesting witnesses and the scribe, and the evidence of the plaintiff's witnesses was inconsistent. Held that the plaintiff did not discharge the burden of proof. (Paras 10-15) B) Specific Performance - Possession - Permissive Possession - The plaintiff claimed possession pursuant to the agreement, but the evidence showed that the defendant was in possession of the property. The court found that the plaintiff's possession, if any, was permissive and not as owner. (Paras 16-18) C) Limitation - Suit for Specific Performance - The suit was filed within the period of limitation from the date of refusal, but the court did not decide on limitation as the suit failed on merits. (Para 19)
Issue of Consideration
Whether the plaintiff proved the execution and genuineness of the agreement to sell dated 15.06.2005 and whether the suit for specific performance was maintainable.
Final Decision
Appeals allowed. Judgment and decree dated 30.01.2015 in O.S. No. 82/2010 passed by the Senior Civil Judge, Nelamangala, are set aside. Suit for specific performance is dismissed.
Law Points
- Specific performance
- burden of proof
- agreement to sell
- genuineness of document
- possession
- limitation
