PERERA A J Vs. NALINI NETHIYAR

JUDGEMENT

(1.) This appeal is preferred against the judgment and decree passed by the Sub Court, Palakkad in OS No. 482 of 1992. The suit is one for return of the advance amount. The brief facts necessary for the disposal of the appeal are stated as follows: The plaintiff had entered into an agreement with the defendants for the purchase of 4 acres of land for a consideration at the rate of Rs. 500/- per cent and had paid Rs. 57,000/- as advance and there is a further stipulation that the document has to be registered on or before 30/04/1988. It is submitted that deliberately one of the survey numbers is not incorporated in the agreement and the land sought to be assigned really had vested in the forest department by virtue of Act 8 of 1971 and in spite of repeated demands, the defendants did not rectify or satisfy the conscience of the plaintiff regarding the right to assign the property and the plaintiff had sent a notice in October, 1989 cancelling the contract and demanding for the amount. J. On the other hand, defendants would contend that it is the plaintiff, who had committed the breach of contract. Actually the agreement of the year 1988 was a continuation of the agreement of 1986 and the parties were totally aware of the lands involved and the document relating to exemption granted by the forest department has been handed over to the plaintiff and in spite of the same under one ground or the other, the plaintiff had declined to perform the contract and therefore the plaintiff is not entitled to the relief as prayed for.

(2.) In the Trial Court, PW 1 and DW 1 were examined. Exts. A1 to A3 and B1 to B5 were marked. On analysis of the materials, the Trial Court dismissed the suit. It is against the same, the plaintiff has come up in appeal.

(3.) Heard the learned counsel on both sides. The young learned counsel for the appellant had forcefully submitted before me that the approach of the Trial Court is totally erroneous and really there is a charge on the property as contemplated under S.55(6) of the Transfer of Property Act, 1882 and therefore there is no limitation to file the suit. The amount has been paid only as an advance amount which forms as a part of the consideration when the transaction goes through and it is not given as a security and therefore it is not liable to be forfeited. It is also contended that it is the breach committed by the defendants and not by the plaintiff.