AMBIKADEVI Vs. M EASWARI

JUDGEMENT

(1.) This appeal is filed by the plaintiff in O.S.No.267 of 1994 on the file of the II Additional Sub Court, Ernakulam. The suit was for specific performance of agreement for sale of the plaint schedule property. The suit was dismissed by the trail court on the ground that the plaint schedule shows an extent of 8 cents of land whereas the land actually available with defendants 1 to 3 has only 6.9 cents.

(2.) The case of the plaintiff is that by Ext.A1 agreement dated 7.12.1993 defendants 1 to 3 agreed for sale of approximately 8 cents of land as described in the schedule to the agreement to the plaintiff. The consideration fixed was Rs.5500/- per cent and a sum of Rs.5000/- was paid as advance sale consideration on the date of the agreement. It is stated that the agreement also stipulated that the property should be measured at the expense of defendants 1 to 3 to fix the boundaries and that the plaintiff should be convinced about the title and documents in respect of the plaint schedule property and to furnish encumbrance certificate for 13 years. On complying with the above conditions, the plaintiff has to prepare the sale deed and pay the balance consideration to execute the sale deed. It is also stipulated that in case the defendants fail to execute the sale deed, the plaintiff can get it executed through court. It is stated that after the execution of the agreement, defendants 1 to 3 did not measure the property nor comply with the other stipulations in the agreement within the period stipulated. The period fixed in the agreement was two months. It is stated that the plaintiff and defendants measured the property during the 1st week of March 1994 and found that the extent of the property as 8 cents. The plaint schedule property lies on the eastern side of the property of the 4th defendant. According to the plaintiff, the defendants failed to demarcate the property within the stipulated time. It is stated that the plaintiff was ready with the balance consideration to be paid within the stipulated time. On 16.3.1994 the plaintiff came to know that defendants 1 to 3 are making arrangements with defendants 4 and 5 to sell the property to defendants 4 and 5. The suit was therefore filed for specific performance of the agreement for sale. The plaintiff was always ready and willing to perform her part of the agreement. The plaintiff also prayed for a permanent prohibitory injunction restraining defendants 1 to 3 from executing any sale deed in favour of defendants 4 and 5.

(3.) Defendants 1 to 3 have filed a written statement. In the written statement, it is stated that on the representation of the plaintiff, the property was measured and it was found to be 6.900 cents. It is also contended that the defendants had been willing to execute the sale deed in favour of the plaintiff in respect of 6.900 cents. The plaintiff is therefore not entitled to get a decree for specific performance of the agreement. There was a kudikidappu on the western side of the plaint schedule property and it was purchased by the kudikidappukari through the Land Tribunal. The plaintiff wanted a right of way through the kudikidappukari's property to which these defendants did not agree. In the agreement also, originally a provision was made for a right of way which was struck off by the husband of the 1st defendant before the agreement was signed.