JAYALAKSHMI AMMAL Vs. CHINNASAMY GOUNDER

JUDGEMENT

(1.) LEGAL heirs of the original plaintiff are the appellants against the reversing judgment.

(2.) THE suit was filed by one Sarangapani Gounder, the predecessor-in-interest of the present appellants for specific performance of the contract in alternative for payment of damages. THE allegations in the plaint are as follows: -Plaintiff and the first defendant entered into an agreement for the purchase of suit property by the plaintiff on 14.7.1984 in Kumarakuppam village and an agreement was executed on the same day indicating that the plaintiff should pay a sum of Rs.30,500/- out of which Rs.4,000/- would be paid as advance and the balance would be paid within two months, whereafter the sale deed should be executed by the first defendant. It was further provided that if the plaintiff fails to pay the remaining sale consideration of Rs.26,500/- within the stipulated time, he had to forego the advance of Rs.4,000/- paid as per the agreement. On the date of the agreement, the first defendant had delivered possession of the disputed property to the plaintiff, who ploughed the same on 18.7.1984 and thereafter planted casuarina on 15.8.1984. THE original document of title relating to property, namely, the sale deed executed by Abirami Ammal and Velu in favour of the first defendant on 31.12.1981 was also handed over to the plaintiff. THE plaintiff has been irrigating from the motor pumpset in S.C.13 in R.S.46/3 in exercise of his half share in such motor pumpset and part of the property was being used as passage. Defendant No.1 intended to sell such property for clearing all the family debts and also for purchasing extensive land in Pomboor village. Subsequently, on 20.7.1984, the first defendant received a further sum of Rs.700/- THE second defendant had purchased from the first defendant certain lands with half share in the motor pumpset in S.C.13 in R.S.46/3 in the suit village and he was also intending to purchase the very same property. When the second defendant became aware of the agreement between the plaintiff and the first defendant, he offered to purchase the suit property for a higher price of Rs.34,500/- THEreafter the first and second defendants colluded with each other and threatened to forcibly dispossess the plaintiff. THE plaintiff had issued a notice dated 19.8.1984 for executing the sale deed and for registration. Such notice was returned as refused. No result is known about the copy of the notice sent by registered post with acknowledgment due. Before issuing such notice, the plaintiff had sent his sons-in-law to persuade the first defendant to complete the transaction. THE plaintiff has always been ready and willing to perform his part of the contract. He has made a separate deposit of the amount in Saving Banks account, which was filed along with the plaint. Accordingly, the suit had been filed for specific performance of the contract or alternatively payment of sum of Rs.22,700/- as damages for breach of the contract.

(3.) TO what relief is the plaintiff entitled?Additional Issue:-Whether the plaintiff is entitled to damages?". 6. On Issue No.1, the trial court found that Defendant No.1 had entered into an agreement with the plaintiff to sell the property and subsequently with a view to defeat the claim of the plaintiff, second defendant obtained a sale deed. The trial court further found that the evidence on record did not prove that casuarina trees had been raised by Defendant No.1 and the property had been sold to Defendant No.2 along with casuarina trees and possession of Defendant No.2 had not been established. In view of such findings, the trial court further found while dealing with Issue Nos.2 and 3 that Defendant No.2 was not a bona fide purchaser without notice of the suit agreement and the sale deed in favour of Defendant No.2 dated 29.8.1984 was not binding on the plaintiff. Under Issue No.6, the trial court found "So as the plaintiff was not in possession of the property, he is not entitled to the injunction." Issue No.4 was not raised. On the basis of findings under Issue Nos.1,2 and 3, while dealing with Issue No.5, the trial court held that the plaintiff is entitled to specific performance of the contract and obtain a sale deed from the defendants 1 and 2. In view of the aforesaid conclusion, the trial court further held that the plaintiff is not entitled to damages, which was claimed by way of alternative relief. Accordingly the suit was decreed. 7. The second defendant filed A.S.No.41 of 1986 against the aforesaid judgment and decree. During pendency of the appeal, the original plaintiff/Respondent No.1 had died and his legal representatives were brought on record as Respondents 3 to 11 in such appeal. Respondent No.2, the original Defendant No.1, had not entered appearance.