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Judgment
Manjunath, J.—Appellant being not satisfied with the decree granted to him in directing R-1 to 3 to refund the advance sale consideration paid by him along with interest at 6% p. a., has filed this appeal challenging the legality and correctness of the judgment and decree passed in O.S.No. 5206/1997 dated 22.7.2005 by the V Addl. City Civil Judge, Bangalore. The facts leading to this case are as hereunder: According to the plaint averments, 1st defendant Chandrika is the owner of the plaint schedule property and defendants 2 & 3 are her minor children and that on 13.6.1994 1st defendant on her behalf and on behalf of her children agreed to sell undivided half share in the ground and first floor of premises No. 64, 17th Cross, Malleswaram, Bangalore for a total consideration of Rs. 8 lacs, to pay a sum of Rs. 4 lacs on the date of agreement as. advance sale consideration and the remaining Rs. 4 lacs was required to pay within a period of three years and was entitled to obtain the sale deed from defendants 1 to 3. It is also his case that subsequent to the agreement on different dates he paid a sum of Rs. 3,40,000/- either by means of cash or through Demand Draft to the 1st defendant and was required to pay only balance sale consideration of Rs. 60,00.0/-. On the ground that defendants 1 to 3 made an attempt to alienate ground floor portion of the property in favour of the 4th defendant, plaintiff filed a suit for bear injunction to restrain defendants 1 to 3 from alienating the property in favour of the 4th defendant; in O. S. No. 2990/1996 and inspite of filing such a suit sale deed in respect of the entire ground floor and half undivided share in the site was sold by defendants 1 to 3 in favour of the 4th defendant. Therefore, suit is filed to enforce the agreement of sale dated 13.6.1994 directing the defendants 1 to 4 to execute the sale deed by receiving the balance sale consideration in respect of half share of ground and half portion of the first floor together with un-divided half share in the site.
4th defendant contested the suit. Defendants 1 to 3 did not contest the suit. 4th defendant contended that the agreement dated 13.6.1994 cannot be enforced as the property in question cannot be vertically divided into two halves and that she has become the absolute owner of the entire ground floor and un-divided half share in the site. According to her, plaintiff was aware of the rights of defendant No. 4 and it is also her case that even prior to the agreement of sale said to have been obtained by the plaintiff from defendants 1 to 3, there was an agreement in favour of 4th defendant''s husband Vivekananda and that he had filed a suit for specific performance of contract in OS No. 4503/1993 on the file of Addl. City Civil Judge, Bangalore. It is her case that during the pendency of the suit her husband Vivekananda died on 9.12.1995 and she was brought on record and the said suit came to be decreed by virtue of compromise and thereafter sale deed was obtained by 4th defendant by paying total sale consideration of Rs. 9,25,000/- in respect of the ground floor and half share in the un--divided half share in the site. Therefore, she contends that suit filed by the plaintiff was not maintainable as the husband of 4th defendant had agreed to purchase the property much prior to the agreement of sale dated 13.6.1994 and that her husband had filed a suit against 1st defendant in the year 1993 itself. In the circumstances, she requests the court to dismiss the suit.
Based on the above pleadings following issues were framed by the court below:
Whether the plaintiff proves that D-1 to D3 executed sale agreement (R) on 13.6.1994 for the suit property?
Does the plaintiff proves payment of Rs. 4 lacs as part consideration by cash and cheque to defendants 1 to 3?
Does plaintiff proves that 1st defendant sold portion of suit property to 4th defendant during the pendency of sale agreement as per para-6 and 7 of plaint?
Does plaintiff proves that he has further paid amounts to defendants 1 to 3 as per para-8 of the plaint?
Does plaintiff proves his readiness and willingness to perform his part of contract?
Does plaintiff proves defendants 1 to 3''s non performance as per para-10 of the plaint?
Does 4th defendant proves that he is a bonafide purchaser?
Does 4th defendant proves that suit against him is not maintainable?
Whether plaintiff is entitled for specific performance?
If so under what order or decree?
In order to prove the respective contentions plaintiff was examined himself as PW--1 and he relied upon Exs.P-1 to 21. 4th defendant examined as DW-1 and relied upon Exs.D-1 to 5. Trial court after appreciating the entire evidence held issues 1 to 6 & 8 in the affirmative, issues 7 & 9 in the negative and ultimately suit of the plaintiff came to be decreed only for refund of advance sale consideration of Rs. 7, 40, 000/- paid by him to 3rd defendant along with interest at 6% p.a. and the relief related to grant for specific performance was dismissed by the judgment and decree dated 22.7.2005. This judgment and decree is called in question in this appeal.
We have heard Sri.Shivakumar, learned counsel for the appellant and Mr.Rajkumar for defendant No. 4.
The main ground of attack of the appellant''s counsel before us is that the trial court has committed an error in dismissing the relief for specific performance when the plaintiff has paid Rs. 7,40,000/- as against the total sale consideration of Rs. 8 lacs. According to him, even if 4th defendant had purchased the property in respect of ground floor, same would be subject to the result of the suit. As the plaintiff has entered into an agreement to purchase half share in the ground floor and 50% undivided share in the site. Therefore he requests the court to re-appreciate the entire evidence and set aside the judgment and decree passed by the trial court. Per contra, counsel appearing for R-4 submits that plaintiff was not a bonafide agreement holder. According to him, he was aware of the earlier agreement entered into between 1st defendant and husband of 4th defendant and the agreement of 4th defendant''s husband was earlier and in fact he had filed a suit for specific performance much prior to enter into agreement by the plaintiff with defendants 1 to 3. According to him, terms and conditions of the agreement cannot be enforced in any court of law and even if a decree is granted it cannot be executable. He further contends that the plaintiff filed a suit for bear injunction in O. S.No. 2990/1996 to restrain defendants 1 to 3 from'' executing the sale deed in favour of 4th defendant. In the aforesaid suit, 1st defendant has categorically stated that plaintiff had played a fraud on her in obtaining such an agreement of sale. According to the written statement filed by the 1st defendant in the aforesaid suit was that she had agreed to sell only first floor and not half share in the ground floor and half share in the first floor. On account of the fraud played by the plaintiff, he is entitled for any of the reliefs,
Having heard the counsel for the parties, the only point to be considered by us in this appeal is:
Whether the trial court is justified in denying the relief of specific performance?
It is not in dispute that 1st defendant was the owner of the entire plaint schedule property. A perusal of Ex.P-1 agreement of sale, it is clear what was agreed to be purchased by the plaintiff was un-divided half share in the ground floor and un-divided half share in the first floor and half share in the site. Before filing the suit he has also got issued a legal notice. There is also a demand of the plaintiff to get the sale deed in respect of undivided half share in the ground floor premises and undivided half share in the first floor premises along with 50% share in the site. Same relief is sought in the plaint.
Before institution of the suit, plaintiff had filed a suit for bear injunction in C.S.No. 2990/1996. In the aforesaid suit, 1st defendant had contended that by playing fraud such a document has been obtained by the plaintiff. It was also contended by the 1st defendant in the aforesaid suit she had not agreed to execute such a document and such document is in-executable and unenforceable.
It is not in dispute that the agreement of sale of plaintiff is 13.9.3.994. But a year prior to the agreement of sale at an undisputed point of time husband of 4th defendant had already filed a suit in the year 1993 in OS. No. 4503/1993 to enforce the agreement of sale executed by the 1st defendant in his favour in respect of the entire ground floor of the suit schedule property and the said suit came to be decreed. Accordingly, a sale deed has been obtained by 4th defendant in respect of ground floor of the premises in question. When 4th defendant''s husband at an undisputed point of time had agreed to purchase the property and when he had already filed a suit for specific performance in O.S.No. 4503/1993, any agreement entered into by the appellant/plaintiff by defendants 1 to 3 would be subject to the result of OS No. 4503/1993. In other words, agreement of the plaintiff is hit by the principles of lis pendense. Admittedly, when 4th defendant has become absolute owner of the entire ground floor, no court can grant a decree in respect of un-divided half share in the ground floor. Therefore, any agreement that has been entered into by the plaintiff with defendants 1 to 3 cannot bind the share of 4th defendant.
When 4th defendant has become absolute owner of the entire ground floor premises with undivided half share in the site, plaintiff at best could have entered into an agreement to purchase either entire first floor or half of the first floor. But Ex.P-1 pertaining to undivided half share in the ground floor and first floor and 50% share in the site. In view of the sale deed obtained by 4th defendant in OS No. 4503/1993, relief sought by the plaintiff cannot be granted. In the circumstances, we are of the view that trial court is justified in ordering for refund of advance sale consideration with interest. When the relief sought by the plaintiff cannot be granted and the same cannot be executed. In the result, we do not see any merits in this appeal. Accordingly, the appeal is dismissed.