A P NESAMANI Vs. R GOVINDASAMY

JUDGEMENT

(1.) THE plaintiffs aggrieved over the concurrent findings of the courts below dismissing the suit as well as the Appeal Suit, have preferred this Second Appeal.

(2.) THE gist of the plaintiffs'case is as follows:- THE suit was filed by one Munusamy (appellant 1 and 2's father) for specific performance of contract for sale. According to the plaintiff, the defendants agreed to sell the suit agricultural lands as described in Schedule to the plaint situated in Kazhipattur Village No. 37, chengalpattu Taluk at the rte of Rs. 1200/= per cent on 25. 4. 1988 to the first plaintiff, Munusamy. THE defendants who are brothers executed fresh agreement on 15. 5. 1988 affirming the earlier agreement by furnishing exact survey Number and extent as per the recent survey. Time was not the essence of the contract. THEy also received a sum of Rs. 33,400/= in pursuance of the agreement. THE payments have been accepted for the items XI to XIV in the agreement. THE first defendant issued a slip in favour of the first plaintiff detailing the payments made till 4. 1. 1989. THE first plaintiff was always ready and willing to perform his part of the agreement. THE defendants also delivered possession of the suit properties in pursuance of the sale agreement and they are in possession of the lands since then and cultivating the lands by raising crops. However, they did not executed the sale deed and they did not receive the lawyer's notice. Hence the suit for the relief stated above.

(3.) ON behalf of the plaintiffs, P. Ws 1 and 2 were examined and Exs. P. 1 to P. 15 were marked. ON behalf of the defendants, D. Ws. 1 and and 2 were examined and Exs. D. 1 to D. 14 were marked. The trial court on consideration of the oral an documentary evidence dismissed the suit holding that the subsequent agreement dated 15. 4. 1988 is not proved by the plaintiff, the properties belong to other sharers as well, whereas in Ex. A. 2 agreement only the signature of D. 1 alone found, and further the suit is barred by limitation. The plaintiff filed an Appeal in A. S. No. 82 of 2000 in the court of the Principal District Judge, Chengalpattu and the learned Prl. District Judge dismissed the appeal conforming the finding of the trial court apart from holding that the two agreements are distinct as they relate to different properties. Hence this second appeal by the plaintiffs.