KANNAN (DIED) Vs. DHANALAKSHMI

JUDGEMENT

(1.) The sole defendant in O.S. No. 506 of 1995 on the file of the learned Principal District Munsif Court, Gingee has filed the present second appeal aggrieved by the concurrent judgment and decree passed by the courts below. Pending second appeal, the sole defendant/appellant died and therefore his legal heirs were brought on record as appellants 2 to 5. The suit in O.S. No. 506 of 1995 was filed by the respondent herein for specific performance of the agreement dated 17.06.1989. According to the plaintiff/respondent herein, the sole defendant (since deceased) was the owner of the suit property having purchased it on 19.06.1986. Thereafter, the defendant agreed to sell the suit property in her favour by entering into an agreement on 17.06.1989. The total sale price fixed was Rs. 6,100/- out of which the defendant received a sum of Rs. 5,000/- as advance from the plaintiff. Upon payment of the balance sum of Rs. 1,100/- the defendant has to execute the sale deed in favour of the plaintiff. According to the plaintiff, there was no time limit stipulated in the agreement between the parties for execution of the sale deed. It is also the case of the plaintiff that upon payment of advance amount, the possession of the suit land was given to her by the defendant wherein the plaintiff/respondent herein also put up a hut. While so, 10 days after the agreement dated 17.06.1989, the plaintiff/respondent herein paid a further sum of Rs. 900/- to the defendant and on receipt of the same, the defendant handed over the original title deeds to the custody of the plaintiff. However, the defendant, for one reason or the other, evaded and avoided to execute the sale deed in favour of the plaintiff. While so, the plaintiff received notice on 10.09.1995 in a suit filed by the defendant in O.S. No. 319 of 1995 and only after receipt of the notice did the plaintiff came to know that the defendant is denying to execute the sale deed in her favour. Therefore, on 10.10.1995, the plaintiff/respondent herein caused a legal notice to the defendant calling upon him to execute the sale deed in her favour. Thereafter, the plaintiff has instituted the present suit for specific performance before the trial court in O.S. No. 506 of 1995.

(2.) The defendant contested the suit filed by the plaintiff in O.S. No. 506 of 1995 by filing a written statement, wherein, inter alia, the defendant admitted the execution of the sale agreement dated 17.06.1989 as also the receipt of advance amount of Rs. 5,000/-, however, he denied the receipt of further sum of Rs. 900/- from the plaintiff. The defendant also admitted the suit filed by him in O.S. No. 319 of 1995, however, denied that possession of the suit property was handed over to the plaintiff on the date of agreement. According to the defendant, the plaintiff was not ready and willing to perform her part of the contract and therefore, he was constrained to cancel the agreement dated 17.06.1989. The defendant also would contend that the plaintiff refused to come forward to get the sale deed executed in her favour and also refused to hand over the title deeds handed over to her and therefore it has become necessary for him to file the suit in O.S. No. 319 of 1995. According to the defendant, he is in possession and enjoyment of the suit property and living there. At no point of time did the possession was handed over to the plaintiff. Therefore, the defendant prayed for dismissal of the suit.

(3.) Before the trial Court, the plaintiff examined herself as P.W. 1 besides three other witnesses as P.Ws. 2 to 4. On behalf of the Plaintiff, Exs. P1 to P12 have been marked. Similarly, the defendant examined himself as D.W. 1 along with two other witnesses as D.Ws. 2 and 3. On behalf of the Defendant, Exs. B1 to B10 have been marked. The trial court, on appreciation of the oral and documentary evidence, decreed the suit filed by the plaintiff. The decree and judgment passed by the trial court was affirmed by the first appellate Court at the instance of the defendant. Thus, as against the concurrent decisions rendered by the courts below, the present second appeal has been filed by the sole defendant.