AUADAI SANGU Vs. K DURAIRAJ

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of the lower appellate Court, namely Court of Subordinate Judge, Tuticorin, dated 24. 09. 1996 passed in A. S. No. 11 of 1994, confirming the judgment and decree of the trial Court (Court of Additional District Munsif, Tuticorin) dated 30. 11. 1993 passed in O. S. No. 18 of 1993.

(2.) THE plaintiff in the original suit is the appellant in the present second appeal. He had filed the original suit, namely O. S. No. 18 of 1993 on the file of the trial Court, for the relief of specific performance of the contract based on the suit sale agreement dated 02. 05. 1991. In the plaint, it was contended that the suit property belonged to the first respondent/first defendant who entered into an agreement for sale of the property to the appellant/plaintiff on 02. 05. 1991; that the agreed sale price was Rs. 7,000/- and the entire sale consideration was paid on the date of agreement itself and that the first respondent/first defendant agreed and undertook to execute the sale deed as and when the appellant/plaintiff would call upon him to do so. It was the further contention of the appellant/plaintiff that though the appellant/plaintiff had performed his part of the contract on the date of agreement itself by making payment of the entire sale consideration and thereafter, was ready and willing to get the sale deed executed and registered in his name at his cost, the first respondent/first defendant who evaded the execution of the sale deed subsequently executed a power of attorney in favour of the second respondent/second defendant who in turn on the strength of the said power of attorney executed a sale deed in favour of the third respondent/third defendant. It was also contended by the appellant/plaintiff in his pleadings that the third respondent/third defendant was not a bona fide purchaser, who purchased the suit property without notice of the existence of the suit sale agreement and hence his right could not be protected. According to the plaintiff, on the date of agreement itself, possession of the suit property was delivered to the appellant/plaintiff in part performance of the contract and he continued to be in possession and enjoyment of the suit property till the date of filing of the suit.

(3.) THE suit was resisted by all the respondents/defendants. Respondents 1 and 2/defendants 1 and 2 filed a common written statement, whereas the third respondent/third defendant filed a separate written statement. Respondents 1 and 2/defendants 1 and 2 in their written statement admitted the execution of the suit sale agreement, but denied the correctness of the recital found in the agreement regarding passing of consideration and delivery of possession in part performance of the contract. They have admitted that such terms had been incorporated in the agreement and knowing fully well that such terms had been incorporated in the agreement, the first defendant affixed his signature in the suit agreement. However they contended that the parent deed and possession of the property were not delivered to the appellant/plaintiff, as it was informed by the appellant/plaintiff after the agreement was signed by the parties that he did not have the money with him at that point of time to be paid to the first respondent/first defendant and that he would make payment subsequently. According to them, since the appellant/plaintiff was not ready and willing to perform his part of the contract, the first respondent/first defendant through his power agent (the second respondent/second defendant) executed a sale deed on 21. 12. 1992 for a valid consideration in favour of the third respondent/third defendant and handed over possession of the suit property to him and that ever since the said date of sale deed, the third respondent/third defendant was in possession and enjoyment of the suit property till the date of filing of the suit.