SHANMUGAM Vs. ARUMUGA PULAVAR DIED

JUDGEMENT

(1.) PLAINTIFF in O.S.No.526/1980 - the third Defendant in O.S.No.53/1983, is the Appellant. Earlier, by the Judgment dated 24. 12. 1977, both the second appeals were allowed holding that the PLAINTIFF is entitled to redeem the Othi and recover possession. As against the said Judgment, the unsuccessful first Defendant has preferred appeal before the Supreme Court in C.A.Nos.4440 and 4441 of 1999. Observing that the High Court has assumed jurisdiction under Section 100 CPC without framing a substantial question of law, the Supreme Court has set aside the Judgment of the High Court and remitted back the matter to the High Court for fresh disposal, in accordance with law. Accordingly, both the second appeals are before this Court for fresh consideration.

(2.) FOR convenience, the parties are referred to their original rank in O.S.No.526/1980. In O.S.No.526/2000, the Suit Property originally belonged to one Sadagopachariar. He Othied the Suit Property in favour of one Thangamani Ammal, wife of the first Defendant Arumugam Pulavar, on 22. 02. 1958, for Rs.300/-. Thangamani Ammal died, leaving first Defendant and second Defendant " her husband and son as her Legal Representatives. The Mortgagor Sadagopachariar died leaving the third Defendant as his only heir. Fourth Defendant is the son of third Defendant.

(3.) AGAINST the Judgment and Decree in O.S.No.526/1980, the first Defendant has preferred appeal A.S.No.8/1982 before the Sub Court Srivilliputhur. When the appeal was preferred, in the same Sub Court, Srivilliputhur, D-1 has filed O.S.No.53/1983 for Specific Performance of Contract on the basis of the Agreement of Sale and for Permanent Injunction. Case of the first Defendant is that third Defendant Thiruvenkadachariar has executed an Agreement of Sale in favour of D-1 on 02. 12. 1974, for a consideration of Rs.1,500/-. For discharging Rs.3,00/-, secured by Othi and Rs.200/- towards the Mortgage Deed dated 24. 07. 1963 and after receiving Rs.250/- as advance by D-3, balance of Rs.750/- was agreed to be paid before the Sub Registrar on 05. 02. 1975, at the time of the execution of the Sale Deed. D-1 was always ready and willing to perform his part of the Contract and get the Sale Deed executed. But the third Defendant has not executed the Sale Deed and absconded. His whereabouts were not known. In collusion with the Plaintiff, D-3 had executed the Sale Deed in favour of the Plaintiff on 31.08. 1979 and the Redemption suit in O.S.No.526/1980 filed by the Plaintiff was decreed and pending appeal. The Plaintiff, as purchaser, knew about the earlier transactions and also about the Agreement of Sale and the Plaintiff is not a bonafide purchaser for value. On the above averments, D-1 has filed the suit O.S.No.53/1983 for Specific Performance and for Permanent Injunction restraining the Plaintiff and others from interfering with his possession of the Suit Property in part performance of the Agreement of Sale.