Judgment:
1. The appellant is the plaintiff in O S No.226/1997 on the file of the I Additional Civil Judge (Sr.Dn.) Bangalore. The suit came to be dismissed on 30.12.2007, against which he preferred R A No. 12/2008. The same also came to be dismissed on 15.7.2010. Hence the present appeal.
2. The suit is one for specific performance of the agreement dated 28.9.1994. Fathers of plaintiff and defendant No. 1 were brothers and consequently the plaintiff and defendant No. 1 is cousin brothers. It is the ease of the plaintiff that the defendants entered into an agreement of sale dated 28.9.1994 agreeing to sell the suit schedule property for a sale consideration of Rs.90,000/- and on the date of agreement Rs.72,000/- has been paid to the defendants and remaining amount to be paid at the time of registration. The plaintiff states that he was put in possession of the defendants. It is further agreed to furnish entire documents within a period of one year. Further on 26.6.1995 further advance of Rs.8, 000/- was received and an endorsement to that effect was made. Since there is failure to register the document, legal notice was issued on 3 8.12.1997 and hence the suit was filed.
3. The defendant No.3 tiled written statement and the said written statement is adopted by the first defendant. The second defendant has not filed written statement. The defendant NO.3 has denied the very existence of agreement dated 28.9.1994 and handing over possession to the plaintiff. The suit schedule property is the ancestral property of the first defendant and his brothers and it has not been divided between them. The third respondent was a minor on the date of the agreement and hence the agreement is void and unenforceable. The property is unidentifiable.
4. On the basis of the pleadings, the trial court framed the following issues:
(1) Whether the plaintiff proves that the defendants being the owners of the suit schedule property entered into an agreement of sale dated 28.9.1994 agreeing to sell the same for total consideration of RS.90,000/- and the plaintiff has paid part consideration of Rs.72.000/- they nave duly executed said agreement parting with possession of property as alleged?
(2) Whether the plaintiff is and was every ready to perform his part of contract as alleged?
(3) Whether the 3"1 defendant proves that the plaintiff is breached the contract and failed to get sale deed executed under the circumstances pleaded in para 8 of the written statement?
(4) Whether the plaintiff is entitled for the relief of specific performance of contract against the defendants as prayed?
(5) To what relief if any, the parties are entitled?
5. Except issue No.3, issue No.1, 2 & 4 have been answered in the negative
6. The trial court has considered the submissions and evidence of all the parties. The stand taken by the defendants in disputing the agreement of sale and also the respondent NO.3 who was a minor and the property in question is an ancestral property. The defendant NO.2 though was major, his signature has not been obtained. The court also considered the discrepancy in the boundaries of the suit schedule property agreed to be sold and the property described in the partition deed of 1962. By virtue of the partition, certain property got to the share of the defendants and since the same is an ancestral property, all the sons of the first defendant are entitled. The property described in the agreement of sale- did not tally with the partition deed of the year 1962. In para 24 of the judgment of the trial court, it is noted that the burden is on the plaintiff to prove the agreement and enforceability of the agreement. It is held that in the essence of pleading and proof as to the sale agreement, the relief could be refused. The defendant No.3 was minor and defendant No.2 has not signed the agreement of sale and cither of the witnesses of the sale agreement has not been examined to prove execution of the agreement of sale.
7. Thus the very existence and emergence of Ex.P1 sale agreement itself has not been established by the plaintiff and he further failed that he was ready and willing to pay the balance of consideration which is a secondary question after proof of the sale agreement.
8. The first appellate court has also framed points for consideration In respect of Ex.P1 agreement and as to unidentifiable and uncertainty and ambiguity in the schedule properties.
9 in the light of the reasons assigned and findings arrived at which are question of fact and concurrently held against the appellant, no substantial question of law arises in the above regular second appeal. Regular Second Appeal stands rejected.