JAYARAMAN Vs. DALAVAI NAGARAJAN

JUDGEMENT

(1.) This is an appeal filed by the defendants 2 to 5 in a suit for specific performance which was decreed by the learned Subordinate Judge, Dharapuram in O.S.No.136 of 1984, by judgment dated 22.7.1988.

(2.) The plaintiff is the first respondent in the appeal who instituted the suit for specific performance of the agreement of sale and for directing the defendants to deliver possession of the suit property to the plaintiff subject to the sixth defendant delivering possession of Door No.44-A on 1.3.1985 and for other reliefs found in the plaint. The case of the plaintiff is that the plaintiff and the first defendant entered into a written agreement of sale on 25.2.1984 wherein it was agreed that the first defendant would sell the suit property to the plaintiff for a consideration of Rs.1 lakh and a sum of Rs.20,000/- was paid as advance towards the sale price on the date of agreement itself. It is stated that three months time was fixed for the payment of balance of sale consideration of Rs.80,000/- for the execution of the deed of sale by the first defendant in favour of the plaintiff and for delivery of possession of the suit property. It is stated that the plaintiff was always ready and willing to perform his part of the contract. It is also averred that the sixth defendant was a tenant of a portion of the property bearing door No.44-A and he instituted a suit in O.S.No.140 of 1984 on the file of District Munsif, Dharapuram against the owner of the property, namely, the first defendant as well as the plaintiff seeking the relief of permanent injunction which resulted in a compromise decree on 4.3.1984 and according to the compromise decree, the sixth defendant has to deliver the portion of the suit property in his possession on 1.3.1985 and until then, he would pay the rent of Rs.12/- per day to the plaintiff and certain other conditions were also imposed. Hence, the relief of possession was claimed against the sixth defendant. The seventh defendant has also been impleaded on the ground that he is the husband of the third defendant and the defendants 2,4,5 and 7 are doing business in the name and style, 'Indhira Stores' in a portion of the property bearing door No.44 and the seventh defendant has been added as a party out of abundant caution as the suit has also been filed for possession. It is stated that the defendants 2 to 5 claimed to have purchased the property from the first defendant on 2.5.1984. It is stated that the aforesaid sale deed does not affect the rights of the plaintiff under the suit agreement of sale dated 25.2.1984. According to the plaintiff, the defendants 2 to 5 purchased the property after they were fully aware of the suit agreement of sale dated 25.2.1984. It is stated that the defendants 2 to 5 wanted to purchase the property and requested the plaintiff to give up his rights under the suit agreement in respect of Door No.44, but the plaintiff did not accede to the request and after that, the defendants 1 to 5 and 7 colluded together and brought about the sale deed dated 2.5.1984. It is also stated that the defendants 2 to 5 are not bona fide purchasers and they have not paid the money in good faith and without notice of the suit agreement and the defendants 2 to 5 were aware of the suit agreement. It is stated that the plaintiff was always ready and willing to perform his part of the contract and after coming to know about the collusive sale deed executed by the first defendant in favour of the defendants 2 to 5, the plaintiff caused a notice to be issued for the execution of sale deed in his favour on or before 25.5.1984, but the first defendant evaded the receipt of the notice and the defendants 2 to 5, though served with the notice, have not sent any reply. Hence, the plaintiff has filed the suit on 11.6.1984 for specific performance and also for the relief of possession.

(3.) The first defendant in the suit remained ex parte and so also the sixth defendant. The defendants 2 to 5 have filed a common written statement and according to their written statement, the defendants 2 to 5 entered into an agreement of sale of the suit property with the first defendant on 18.11.1983 and paid an advance of Rs.30,000/- to the first defendant for which a voucher/receipt has been given by the first defendant. It is their specific case that the first defendant colluded with the plaintiff and created a bogus and ante-dated agreement of sale and the plaintiff was not having the capacity to pay the advance amount of Rs.20,000/-. According to the defendants 2 to 5, the plaintiff is not having the capacity to pay Rs.1 lakh. It is their case that out of the collusive action between the first defendant and the plaintiff the suit agreement has been entered into. It is stated that after the issue of notice by the plaintiff through his advocate, the fifth defendant met the plaintiff at Dharapuram and set forth their sale from the first defendant for which the plaintiff replied that only at the instigation of the first defendant he created the ante-dated agreement and he is not going to press the same. It is stated that believing the words of the plaintiff the defendants 2 to 5 did not send any reply. It is stated that a varthamanam was executed by the sixth defendant in favour of the defendants 2 to 5 on 2.5.1984 to the effect of delivering of possession of the building bearing door No.44A. It is their case that the sixth defendant is not in possession of the property. It is stated that the defendants 2 to 5 are not concerned with the suit in O.S.No.140 of 1984 on the file of District Munsif, Dharapuram. It is stated that the defendants 2 to 5 entered into the sale agreement with the first defendant even on 18.11.1983 and this sale agreement is prior to the suit agreement of sale. It is also stated that they had no knowledge of the suit agreement of sale. It is stated that the sale deed in their favour has been acted upon. It is also stated that the plaintiff is not having the capacity to pay the balance of sale consideration. It is their specific case that the suit agreement is ante-dated. The defendants 6 and 7 have filed separate written statements.