SREEDHARAN MOOTHATHU Vs. VARKEY

JUDGEMENT

(1.) These are connected appeals from the decrees and judgments of the District Munsiff of Ettumanoor in O.S. 920 of 1118 and O.S. 200 of 1119 of his court. The 2nd defendant in O.S. 920 of 1118 is the appellant in A.S. 165 of 1122 and the 3rd defendant is the appellant in A.S. 619 of 1122. The plaintiff in O.S. 200 of 1119 is the appellant in A.S. 186 of 1124. The two suits were jointly tried and the evidence was recorded in O.S. 920 of 1118.

(2.) O.S. 920 of 1118 was for the specific performance of a contract for sale. The 2nd plaintiff and two others were holding the suit properties on a kanom demise from the illom of defendants 1 to 3. Defendants 1 and 2 on behalf of their illom sued in O.S. 883 of 1104 for arrears of michavaram and other dues and obtained a decree. Plaintiffs 1 and 4 who were impleaded as additional defendants 3 and 6 in that suit remained ex parte. In execution of the decree in O.S. 883 of 1104 defendants 1 and 2 brought the suit properties to sale and purchased the kanom right in court auction. Thereafter the present plaintiffs 1 and 4 (defendants 4 and 6 in that suit) filed an application to set aside the ex parte decree against them. While that application was pending the parties entered into Ext. J compromise by which the validity of the decree and the court sale was admitted by the plaintiffs and the application of plaintiffs 1 and 4 to set aside the ex parte decree was agreed to be withdrawn. The possession of the properties sold was handed over to defendants 1 and 2 and it was agreed that if the plaintiffs pay to the defendants Rs. 1275 within three years of the date of the compromise the plaint properties will be sold to the plaintiffs. Plaintiffs were ready and willing to take the sale on payment of the stipulated amount. On 10.11.1115 they tendered the money and demanded the 2nd defendant the manager of the illom for the execution of the sale deed. He stated that on account of disputes between him and the first defendant regarding their family affairs the sale could not be executed then. However he authorised the plaintiffs to take possession of the plaint properties and stated that the sale deed can be executed after the settlement of the family disputes. In pursuance of this the plaintiffs took possession of the plaint properties. On further demands thereafter the execution of the sale was put off for the same reason as before. Finally when money was tendered on 13.11.1118 and plaintiffs pressed for the execution of the deed of sale defendants refused to do so. On these allegations plaintiffs have brought the suit to enforce the agreement embodied in the compromise and compel defendants 1 to 3 to execute a sale of the plaint properties in their favour. Plaintiffs stated in the plaint their willingness to pay the consideration stipulated in the agreement and after filing the suit have on 26.11.1118 deposited the amount in court. Defendants 2 and 3 in separate written statements denied the plaintiffs right to enforce specific performance of the contract. They contended that there was no offer of any money or demand for the execution of the sale deed either on 10.11.1115 or thereafter. The allegation that the plaintiffs were authorised to take possession of the property and that they are so in possession was also denied. The plaint properties were stated to be in the possession of the 2nd defendants lessee one Sankaran Nair. It was also contended that the suit was barred by limitation. The 3rd defendant further pleaded that defendants 1 and 2 were not competent to enter into an agreement to sell illom properties and that the agreement is not valid and binding on the illom.

(3.) After the institution of O.S. 920 of 1118, 2nd defendant as plaintiff filed O.S. 200 of 1119 for recovery of the plaint properties with arrears of rent against Narayanan Nair the lessee and against the plaintiffs in O.S. 920 of 1118 on the allegation that the latter were holding the properties under Narayanan Nair having entered possession in collusion with him. The learned Munsiff repelled the contentions of the defendants in O.S. 920 of 1118 and decreed the suit. Consistently with his findings in O.S. 920 of 1118, O.S. 200 of 1118 was dismissed.