JAYAKUMAR Vs. KRISHNASWAMY IYYENGAR

JUDGEMENT

(1.) The defendant is the appellant herein. The plaintiff, who is the respondent filed the suit in O.S. No. 193 of 1999 praying for recovery of possession of 3 acres of land in S. No. 8/2-A 1 in Thular Village, Kudavasal Taluk. The very same plaintiff filed the suit in O.S. No. 77 of 2000, praying for damages for use and occupation. The trial Court non-suited the plaintiff in both the suits. The plaintiff preferred two separate appeals, aggrieved by the judgment of the trial Court, before the first appellate Court. The first appellate Court accepted the contention of the plaintiff and decreed both the suits. As against which, these two appeals have been preferred by the defendant.

(2.) The plaintiff has contended that he agreed to sell the suit property in S. No. 8/2A1 measuring 3 acres along with the bore pump set to the defendant for a total consideration of Rs. 1,16,000/-. An agreement of sale was entered into between the plaintiff and the defendant on 30.7.1992. A sum of Rs. 40,000/- was paid as a sale advance and the defendant paid later a sum of Rs. 7,750/-. As the remaining balance amount was not paid and the bank debt payable by the plaintiff was not also discharged within one year from the date of agreement by the defendant as per the agreement, the plaintiff cancelled the agreement. The defendant is getting income from the suit property. Therefore, the advance amount paid by the defendant remained adjusted it. The plaintiff has proposed to lay a separate suit for damages for use and occupation following the failure on the part of the defendant to discharge the bank debt. The suit in O.S. No. 193 of 1999 was filed, praying for recovery of possession. Contending that the defendant was liable to pay damages for use and occupation, the subsequent suit in O.S. No. 77 of 2000 was filed by the plaintiff, praying for damages for use and occupation.

(3.) The defendant would contend in the written statement that the defendant, who is in possession and enjoyment of the suit property by virtue of the agreement of sale entered Into between the plaintiff and the defendant, is entitled to protect his possession as per Section 53(A) of the Transfer of Property Act. The defendant had subsequently, paid a sum of Rs. 7,550/- on various occasions to the plaintiff and due endorsement was also made by the plaintiff on 27.12.1992. It is further contended that the defendant was ever ready and willing to perform his part of contract. The plaintiff failed to mention the interest portion payable by the defendant to the bank. The plaintiff received a sum of Rs. 16,690/- on 1.3.1995 and subsequently, a silm of Rs. 27,500/- and the plaintiff informed the defendant that he would discharge the bank loans. It is also submitted that the plaintiff has chosen to borrow a sum of Rs. 20,000/- and execute a Mortgage deed in favour of the Primary Agricultural Co-operative Bank on 16.10.1992. Alleging that the defendant could not perform his part of contract on account of the dilatory tactics adopted by the plaintiff, the defendant has sought for dismissal of the suit filed by the plaintiff for recovery of possession. As regards the other suit filed for damages for use and occupation, the defendant would contend that the plaintiff is not entitled, to claim any damages, as the defendant has been in possession and enjoyment of the suit property pursuant to the agreement of sale entered into between the parties, exercising his right under Section 53(A) of the Transfer of Property Act.