YESUDASS Vs. HENRY VICTOR

JUDGEMENT

(1.) THE legal heirs of the plaintiff in O. S. No. 304 of 1984 and O. S. No. 217 of 1986 respectively are the appellants in these second appeals. The said two suits were filed for specific performance. The trial court, by common judgment and decree dismissed their suit and the appeal filed by them were also dismissed by common judgment and decree, hence the present second appeals.

(2.) FOR the sake of convenience, the plaintiff (Chandrakanthan) in O. S. No. 304 of 1984 shall hereinafter be referred to as plaintiff; the defendants 1 and 2 in both the suits shall be referred to as defendants 1 and 2 and the plaintiff (Yesudass) in O. S. No. 217 of 1986 shall hereinafter be referred to as third defendant.

(3.) THE case of the plaintiff in O. S. No. 304 of 1984 are as follows:- (a) The defendants 1 and 2 are the owners of the suit property, they agreed to sell the same to the plaintiff for a total sale consideration of Rs. 9,225/- and accordingly, they have entered into an agreement of sale on 25. 12. 1983, Ex. A1. On the same day, the plaintiff has paid a sum of Rs. 4,700/- as advance. As per the recitals of agreement, Ex. A1, the plaintiff has to pay the balance sale consideration within a period of three months and to get the sale deed executed in his favour. According to the plaintiff, he was always ready and willing to perform his part of the contract and inspite of repeated demands made, the defendants 1 and 2 have not come forward to execute the sale deed, hence, he sent a legal notice on 18. 03. 1984, Ex. A3 to the defendants 1 and 2, for which, they have sent a reply notice dated 29. 03. 1984, Ex. A4 containing false averments, hence, the suit for specific performance of the agreement dated 25. 12. 1983 has been filed. (b) The defendants 1 and 2 in the said suit have filed their written statement contending that the suit is not maintainable; that the agreement dated 25. 12. 1983, Ex. A1 was not genuine; that the defendants 1 and 2 have already entered into an agreement of sale on 29. 05. 1983, Ex. B2 with the third defendant (Plaintiff in OS No. 217 of 1986), which was known to the plaintiff, but he forced them to execute the agreement, Ex. A1 dated 25. 12. 1983, hence, it was not valid; that the plaintiff has no sufficient means to pay the balance sale amount; that the plaintiff was not ready and willing to pay the balance amount at any point of time; that in pursuance of the agreement of sale, Ex. B2 with the third defendant, the possession was delivered to him and he was in enjoyment of the suit property; that the suit is liable to be dismissed for non-joinder of necessary parties.