YASODA PURUSHOTHAMAN Vs. YASODA PURUSHOTHAMAN

JUDGEMENT

(1.) THE unsuccessful defendant is the appellant herein. THE respondent herein has filed a suit in O.S. No:4335 of 1994 before the First Assistant City Civil Court, Chennai, for specific performace, which was decreed. THE appeal filed in A.S. No: 56 of 1997 by the appellants before the 3rd Additional City Civil Judge, Madras, was also dismissed. Hence, the present second appeal.

(2.) THE facts which are relevant for the disposal of this second appeal are as follows :- " THE respondent and the appellant entered into an agreement Ex.A.1 dated 26.05.1971 to sell the H.I.G plot for a total of Rs.85,000/-. On the date of execution of Ex.A.1 a sum of Rs.6,000/- was paid by the respondent herein in which a sum of Rs. 5,000/- was paid straight to the Housing Board and a sum of Rs.1,000/- was paid to the appellant as required by the appellant. Under Ex.A.2 dated 7.8.1971, the appellant also delivered vacant possession to the respondent. THE sum of Rs. 71,104/- was paid by the respondents on various dates is evident from Ex.A.3. THE appellants herein issued a notice to the respondents on 16.11.1988 under Ex.A.24, for the first time, terming the respondent as a lessee and calling upon the respondent to vacate and deliver possession. THErefore, a suit in O.S. No: 1509 of 1989 came to be filed by the respondent for mandatory injunction to direct the appellant herein to execute the sale deed. THE said suit was dismissed. THE appeal preferred by the respondents is A.S. No: 165 of 1994. Pending appeal, the respondents herein filed C.M.P. No: 250 of 1995 seeking permission to withdraw the suit which was allowed. It is also relevant to mention that even before filing the C.M.P. No: 250 of 1995 the respondent herein has filed the present suit in O.S. No: 4335 of 1994 for specific performance. THE appellant herein contested the said suit by defending that the second suit is barred by resjudicata. As per the arrangement under Ex.A.1 the respondent failed to pay the amount payable to the Housing Board. Hence, the sale deed was not executed. With the above said contentions, the respondents herein marked Exs. A.1 to A.32 and the plaintiff examined himself as P.W.1. THE appellants herein marked exhibits B.1 to B.15 and examined the third appellant herein as D.W.1."

(3.) IT is further submitted by Mr.T.V. Ramanujam, that as per Ex.A.1 the appellant has to execute the sale deed only after obtaining the sale deed from the Housing Board. As that sale deed was executed in favour of the appellant on 30.05.1994, on that day, the cause of action arose and thus, the present suit which is filed on 08.06.1994 is well within time even by application of Article 54 of the Indian Limitation Act. Learned senior counsel would also further point out that the defendant had received the major portion of the agreed amounts on various dates is evident from Ex.A.3 dated 15.02.1972 and even prior to the said date, possession was delivered to the plaintiff, namely on 01.08.1971, is evident from Ex.A.2. According to him the Courts below, only after taking into consideration these facts, have rightly granted the relief sought for by the plaintiff and prayed for dismissal of this second appeal.