A KALEELUR RAHMAN Vs. A BARKATH

JUDGEMENT

(1.) THIS First Appeal (Appeal Suit) arises out of the judgment and decree dated 25.09.2007 made in O.S.No. 352 of 2005 on the file of the Additional District Court, Fast Track Court No.1, Chengalpattu.

(2.) THE averments made in the plaint are as follows: (i) THE first defendant's husband, met the plaintiff in June 2003 and offered to sell his wife's property of 1.07 acres in Survey No.471(part) in Mangadu Village for the purpose of meeting the expenses of completing the construction of his "Rahman Kalyana Mandapam" in Balaji Nagar, Pattur. After negotiation, the plaintiff has entered into sale agreement with the first defendant on 08.07.2003 and fixed the sale consideration for Rs.8,50,000/- and he paid an advance amount of Rs.2,00,000/- to the first defendant on 08.07.2003 at the time of execution of the said sale agreement and also six months time is granted for execution of sale deed. (ii) THE plaintiff paid Rs.1,00,000/- on 11.08.2003 and paid Rs.50,000/- on 25.08.2003 and the same were acknowledged by the first defendant by making endorsements in the said sale agreement. (iii) In the month of December 2003, when the plaintiff expressed his readiness and willingness to pay the entire balance of sale consideration to the first defendant, at the time, the first defendant said that there was some typographical error found in the title deed in respect of the survey number relating to the suit property and that should be rectified before the execution of the sale deed in favour of the plaintiff. (iv) On 10.01.2004, when the first defendant and her husband demanded a further advance of Rs.1,40,000/-, the plaintiff agreed to pay the same on condition that the possession of the suit property should be given to him for his cultivation in part performance of the contract. (v) On 12.01.2004, in the presence of the first defendant's brothers Shoukat Ali and Mr.Jaffarullah, the possession of the suit property was handed over to the plaintiff and in turn, he paid a sum of Rs.1,40,000/- to the first defendant's husband on 13.01.2004 in the presence of the first defendant's brother-in-laws Abdul Rahman and Mohamed Hasan. After the said payment, the first defendant's husband represented that he will get the signature from his wife, acknowledging the receipt of Rs.1,40,000/- and for delivery of possession. (vi) THE first defendant and her husband had cunningly going on dodging and delaying to return back the original agreement to the plaintiff, with the endorsement of receipt of Rs.1,40,000/- and delivery of possession. THE plaintiff has been placed in possession in part performance of the contract on 12.01.2004 and the plaintiff was always ready and willing to perform his part of contract. In the meantime, the plaintiff's advocate wanted to verify the title deed, patta and the extract of the land register. So the plaintiff requested the first defendant and her husband to furnish all those papers for verification. But they are dodging for the same. (vii) THE plaintiff has issued a notice on 15.09.2005 to the first defendant. He received an evasive reply dated 30.09.2005. So he was forced to sent a rejoinder dated 26.10.2005. Since some typographical errors occurred in the said rejoinder, a corrigendum letter dated 12.11.2005 was issued to the first and second defendant. (viii) Subsequent to the sale deed dated 02.12.1971, the S.No.471 was subdivided and new subdivided S.No.471/5 was given to the property agreed to be sold. (ix) Originally, one Palanisamy Pillai is the owner of the entire S.No.471 consisting of 6.07 acres, which was subdivided into S.Nos.471/1, 471/2, 471/3, 471/4, 471/5 and 471/6. (x) THEre was no privity of contract between the second defendant and the plaintiff. THE second defendant is added as a party to the suit for directing him to execute necessary rectification deed. THE plaintiff is, without prejudice to the facts, willing to pay again a sum of Rs.1,40,000/- and he is ready to pay a sum of Rs.5,00,000/- towards balance sale consideration. Hence he constrained to file a suit for mandatory injunction directing the first and second defendant to rectify the mistake committed in the sale deed dated 29.03.2001 and directing the first defendant to sell and convey the suit property to the plaintiff or in alternative, for recovery of compensation and for other reliefs and prayed for any decree.

(3.) AFTER hearing the arguments of both sides counsel, the following points for determination are framed: 1.Whether the trial Court is correct in held that the appellant/plaintiff is not ready and willing to perform his part of contract? 2.Whether the trial Court is correct in held that the appellant/plaintiff is not entitled to compensation? 3.Whether the judgment and decree passed by the trial Court are sustainable? 4.To what relief, the appellant/plaintiff is entitled to?