C.S.UDAYAKUMAR Vs. PALANIAMMAL

JUDGEMENT

(1.) The appeal suit is directed against the judgment and decree dated 06.09.2011 passed in O.S.No.798 of 2009, on the file of the First Additional District Judge, Coimbatore.

(2.) The plaintiffs are the appellants and the suit was instituted for specific performance of an agreement to sell the 3/8 shares of the defendants in the suit property.

(3.) The facts in brief as narrated in the plaint are hereunder: Defendants 1 and 2 are each entitled to 1/8 share in the suit property while defendants 3 to 8 are entitled to another 1/8 share. They along with other co-owners entered into an agreement to sell dated 18-08-2006 with the plaintiff in respect of 6.80 acres in Sy.No:296 of Irugur village at the rate of Rs. 7.10 lakhs per acre. Plaintiff has paid Rs.5.0 lakhs under the said agreement and time for completing the sale is fixed at 6 months. The agreement provided that the defendants and their co-owners would produce the title deeds pertaining to the said property, survey it and fix the boundaries for the same and the time originally fixed is extendable till defendants fulfilled their obligations as above. Needless to mention that time is not an essential term of the contract. The defendants or their co-owners never handed over the title deeds to the plaintiff. Be that as it may, the aforesaid agreement recites about a certain document of title, but on verification it is found that the same does not pertain to the property dealt with thereunder. The plaintiff therefore wanted to enter into a registered agreement to sell with a correct title deed. In order a title deed could be so provided, plaintiff negotiated with all the co-owners of the property, advised them to execute a partition deed. The defendants did not even know about the existence of the property, its whereabouts nor have they any valid documents of title. Hence he made ready a partition deed and the same was executed at his cost. Even as this process was underway, the plaintiff cleansed and levelled the property, and verified the revenue records only to discover that of the 6.84 acres, a portion of the property had been acquired for the Railways and the balance available is only 5.80 acres. After the execution of the partition deed as stated above, all the co-owners including defendants 1 and 2, but excluding defendants 3 to 8 have executed a registered agreement to sell dated 04-10-006, and the same was registered on 06-10-2006. Defendants 3 to 8 agreed that they would sell their portion directly to the plaintiff. All the co- owners of the suit property gave its possession to the plaintiff to level it, survey it and develop it by laying survey stones. Plaintiff took possession and fenced a portion of the property and cultivated it. As per the second mentioned sale agreement, all except the present defendants have executed a General Power of Attorney in favour of the plaintiff for execution of sale deeds as regards their shares in the suit property, and the plaintiff in turn had executed sale deed on 23-04-2008, acting on the strength of the said power of attorney, in favour of one Latha, Kalavathi and Sidheswaran. The defendants however, were not keen to fulfill their contractual obligation. Meanwhile, on 13-08-2007, the 2nd defendant obtained a further advance amount of Rs.2.0 lakhs and to that effect she made an endorsement in the agreement. Defendants 1, 2 and 3 to 8 are entitled to 72.5 cents each, and they are entitled to receive Rs.5,14,750/- each. After adjusting the advance amount the first defendant and defendants 3 to 8 are entitled to receive Rs.4,52,250/- each and the 2nd defendant is entitled to receive Rs.2,52,250/-. The defendants continue to be non co-operative in the matter of execution of sale deeds. Plaintiff, upon taking possession spent considerable amounts totaling upto Rs.10.0 lakhs, to develop and improve the property, and clear it of third party encroachments. In the face of continued indifference of the defendants to comply with their contractual obligations, the plaintiff was constrained to issue a legal notice dated 07-05-2008 on the defendants. Though this notice was received by them, still there was hardly any change in the status quo. The plaintiffs have approached the defendants and conveyed to them of their readiness and willingness to perform their part of the contract, but the latter would only delay things for the former. The plaintiffs were keen to compromise the matter as they were keen to do their business without resorting to legal proceedings. As nothing worked for the plaintiffs in getting the sale deeds executed by the defendants, the suit is laid.