K KRISHNAN NAIR Vs. K PARAMESWARAN PILLAI DIED

JUDGEMENT

(1.) THE former appeal arises out of the suit for petitioner in O. S. No. 43 of 1979 on the file of the Subordinate Judge, Kuzhithurai and the latter appeal arises out of the suit for specific performance filed by the first defendant in the other suit, as O. S. No. 33 of 1979 on the file of the same court. Defendants 1 and 3 to 5 to in O. S. No. 43 of 1979 are the appellants in the former appeal and the plaintiff in O. S. No. 33 of 1979 is the appel-lant in the latter appeal. THE parties will be referred to by their ranks in A. S. No. 348 of 1982.

(2.) THE first appellant, the first respondent and the second respondent purchased for a sum of Rs. 7,000 certain properties including the suit properties from one Govindan Nambudhiri on 7. 3. 1962. In the document of purchase, reference was made to a decree in O. S. No. 380 of 1950 on the file of the District Munsif''s Court , kuzhithurai, for possession. THE vendor had assured the purchasers that he would get delivery of possession in execution of the said decree and hand over possession of the same to the purchasers. THE purchasers got possession of the properties on 9. 2. 1963. On Pathan Nadan and others sought to disturb the possession of purchasers which resulted in a proceeding under Sec. 145, Crl. P. C. the parties hereto were shown as' 'A''party and Pathan Nadan and others were shown as''B''party. A preliminary order was passed in the said proceedings on 9. 12. 1963 by the Executive I Class Magistrate, Padmanabhapuram. THE subject matter of the said proceedings was suit item No. 1 comprising of 11 acres, 22 cents in Survey no. 2204-8-B. When that proceeding was pending, an agreement was brought into existence by the first appellant and respondents 1 and 2 on 9. 4. 1964 under which respondents 1 and 2 agreed to sell their 2/3rd share in suit item No. l to the first appellant for a total consideration of Rs. 17,967. THE agreement also referred to a right to enjoy survey No. 2204-8-C, which is a poramboke land of an extent of 2 acres, 64 cents, adjacent to suit item No. l out of the total consideration, a sum of Rs. 1,983. 50 was paid to each of respondents 1 and 2. As regards the balance of Rs. 14,000 it was agreed that each should be paid rs. 7,000. Respondents 1 and 2 agreed to sell their two-third share in the said property. THE period for purchase of the property was fixed as one month after final order in M. C. No. 7 of 1964. which was the proceeding under Sec. 145, crl. P. C referred to earlier. That proceeding was later transferred to the file of the District Magistrate (Judicial) Court, Nagercoil and numbered as m. C. No. 33 of 1964. A final order was passed on 30. 7. 1964 declaring the possession of the property to be with''B''party therein, namely Patan Nadan and others. Thus, the proceeding in M. C. Nos. 7 of 1964/33 of 1964 ended against the parties to the suit. A suit was filed by the first appellant as well as respondents 1 and 2 together on 2. 9. 1964 for declaration of their title to the property and to set aside the order passed by the District Magistrate (Judicial) in M. C. No. 33 of 1964. That suit was numbered as O. S. No. 24 of 1964 on the file of the Subordinate Court, Padmanabhapuram. It was later transferred to Subordinate Court, Nagercoil and numbered as O. S. No. 27 of 1965. the suit was dismissed on 15. 4. 1966. THE appeal to the District Court was numbered as A. S. No. 373 of 1966. It was allowed on 27. 1. 1968 and the suit was decreed. During the pendency of the appeal, Pathan Nadan died and his legal representatives were impleaded as parties. Second appeal was filed by them in this Court in S. A. No. 404 of 1968. That was allowed by this Court and the matter was remanded on 6. 7. 1971 to the District Court for fresh disposal. THE District court in turn remanded the matter to the sub-court by orders dated 23. 8. 1972. On 19. 2. 1973, the sub-court decreed the suit in favour of the plaintiffs. THEreafter, the second respondent herein sold his share of the property to defendants 3 to 5 on 26. 9. 1974 for a sum of Rs. 4,000. An appeal was filed by Pathan Nandan''s legal representaives against the decree passed by the Subordinate Judge and it was numbered as A. S. No. l59 of 1973 on the file of the District Court, Nagercoil and that appeal was dismissed on 9. 9. 1977. THE second appeal to this Court in s. A. No. 73 of 1978 was dismissed in limine on 10. 1. 1978.

(3.) IN those appeals, following contentions are raised by learned counsel for the appellants: (1) The suit to set aside the order in the proceedings under Sec. 145, Crl. P. C. is only a continuation of the said proceedings and the lime fixed by the parlies for specific performance would began to run only at the conclusion of all the proceedings after the dismissal of S. A. No. 73 of 1978. Hence, there is no question of abandonment of the agreement on the part of the first appellant' (2) The suit is not barred by limitation in view of the fact that the time began to run only when S. A. No. 73of 1978 was dismissed on 10. 1. 1978' (3) The first appellant was always ready and willing to perform his part of the contract and the truth of the agreement or the passing of part of consideration not being in dispute, a decree for specific performance had to be granted'and (4) INsofar as item No. 2 is concerned, appellants 2 to 4 are in exclusive possession as tenants and that should have been upheld by the court below.