PITCHAN AMBALAM Vs. KASI PITCHAN AMBALAM

JUDGEMENT

(1.) THE above Second Appeal has been filed by the second defendant in OS No. 2071 of 1979 on the file of the Dist. Munsif's Court, Dindigul, who was successful before the trial Court, but failed before the lower appellate court, against the judgment and decree of the learned Subordinate Judge, Dindigul, dt. 18.10.1982 in A.S. No. 136/1981 reversing the judgment and decree of the learned trial Judge, dt. 30.9.1981 in O.S. No. 2071/1979. THE first respondent/plaintiff filed O.S. No. 2071/1979 for specific performance and for directing defendants 3 to 7, the legal representatives of the first defendant to execute the sale deed in favour of the plaintiff as per the terms and conditions of the sale agreement dt. 18.4.1979 and if the defendants 3 to 7 fail to do so, to execute the same through Court and also for a decree for permanent injunction, restraining the defendants, their men and agents from in any manner interfering with the plaintiff's alleged possession and enjoyment of the suit properties. THE case of the plaintiff is that the first defendant has entered into an agreement of sale to sell the three suit items or properties under Ex. A3 dt. 18.4.1979, that pursuant to the sale agreement the possession of the properties was also entrusted to the plaintiff on receipt of a sum of Rs. 1,500/- towards the advance out of the total consideration of Rs. 3,500/-. that the sale deed has to be executed within one year after receiving the balance of consideration and that the first defendant was evading to execute the sale deed in spite of demands made and a registered notice dt. 28.3.1979 marked Ex. A1 sent which the first defendant also acknowledged on 30.5.1979 and in spite of all these, the first defendant, colluding with the second defendant, has sold the property to the second defendant and has started giving trouble to disturb the possession of the plaintiff, of the property.

(2.) THE first defendant died during the pendency of the suit and the second defendant filed the written statement contending that the alleged agreement of sale is a sham and nominal one, that the agreement having been not registered it is a void document and no rights flow to the plaintiff under the same and the same cannot be enforced and that the second defendant has purchased the properties for valid consideration and he being a bonafide purchaser for value without notice of the alleged agreement, his rights under the sale deed dt. 9.6.1979 marked as Ex. B1 cannot be disturbed, that the second defendant alone has been in possession and enjoyment of the properties and prior to him, the first defendant was in possession and that, therefore, the suit is liable to be dismissed. On the above conflicting claims and contentions of parties, the suit was tried and both sides adduced oral and documentary evidence. THE learned trial Judge by his judgment and decree dt. 30.9.1981 dismissed the suit. THE learned trial Judge was of the view that the sale agreement Ex. A1 is a the document, and not a sham and nominal one without consideration as claimed by the second defendant, that the same was void for want of registration and cannot be enforced, that the plaintiff was never put in possession of the properties and that it is the second defendant who was in possession and the second defendant is a bona fide purchaser for value without notice of the agreement of sale in favour of the plaintiff. THE trial court also held that since the plaintiff had an alternative remedy, the relief of specific performance need not be granted.

(3.) MR. E. Padmanabhan, learned counsel appearing for the second defendant/appellant contended that the learned first Appellate Judge could not have granted the relief of specific performance in derogation of the provisions contained in S. 12 of the Specific Relief Act, 1963 and the first appellate Court also misdirected itself in surmising that the second defendant had notice of the earlier agreement of sale marked as Ex. A3. The learned counsel took me at length through the judgments of both the courts below and particularly the findings recorded by the first Appellate Court deviating from the findings of the learned trial Judge to demonstrate his stand that the view taken by the learned first Appellate Judge is unsustainable in law.