SREERANGA NACHIAR DECEASED Vs. ATHI CHETTIAR

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the learned Principal District Judge, Tirunelveli, dated 07.09.1994 made in A.S.No.128 of 1992 reversing the judgment and decree of the trial Court (Court of the Principal Subordinate Judge, Tirunelveli) dated 31.07.1992. The suit for specific performance had been dismissed by the trial Court. The lower appellate Court reversed the same and decreed the suit for the relief of specific performance as prayed for.

(2.) THE respondent herein/plaintiff had filed the suit in O.S.No.61 of 1981 on the file of the Principal Subordinate Judge, Tirunelveli based on Ex.A1-suit agreement for sale dated 26.01.1983. According to the plaint averments, the deceased first appellant/defendant entered into an agreement with the respondent/plaintiff under Ex.A1 for the sale of the suit property for a sale consideration of Rs.20,424/- calculated at the rate of Rs.9,200/- per acre and received a sum of Rs.1,001/- towards advance and part payment of sale consideration on the date of agreement itself. It was the further contention of the respondent/plaintiff that possession of the suit property was delivered to him on the date of agreement in part performance of the contract and that a further sum of Rs.1,000/- was paid on 27.01.1983 for which an endorsement was made on the back side of the agreement Ex.A1.

(3.) THE suit was resisted by the deceased first appellant/defendant by filing a written statement denying the plaint averments. Even though the plaint averments regarding the suit agreement were denied in paragraph 2 of the written statement, the deceased first appellant/defendant made a specific admission in paragraph 6 of the written statement to the effect that she entered into an agreement with the respondent/plaintiff on 26.01.1986 for the sale of the suit property and received a sum of Rs.1,001/- as advance on the date of agreement itself. On the other hand, it was her contention that she did not deliver possession of the suit property to the respondent/plaintiff in part performance of the contract and that on the other hand, the respondent/plaintiff taking advantage of his position as the owner of the adjacent land, trespassed into the suit property after the date of the suit agreement for sale. THE deceased first appellant/defendant contended further that the plaint averments regarding existence of encumbrances and the respondent's/plaintiff's readiness and willingness to perform his part of his contract were all false; that the respondent/plaintiff was not actually ready and willing to perform his part of the contract and hence he had not properly pleaded his readiness and willingness to perform his part of the contract and that the respondent/plaintiff should be non-suited for the relief of specific performance of contract prayed for in the suit.