CHOKKAMMAL Vs. K BALRAJ

JUDGEMENT

(1.) FIRST appeal and Transfer Appeal filed against the judgment and decree of the Additional Subordinate Judge, Chengalpattu dated 29.7.1994 passed in O.S.No.44 of 1993 and O.S.No.280 of 1993.I Nature of suits in appeals: The appeals are against the common judgment rendered on 29.7.1994 in O.S.Nos.44 of 1993 and 280 of 1993. The former suit viz., O.S.No.44 of 1993 was for specific performance of agreement of sale, admittedly executed by the first defendant in favour of the plaintiff for a consideration of Rs. 44,000/- on 13.9.1992. The second defendant is the wife of the first defendant and defendants 3 to 5 are their sons. The first defendant has filed his own suit in O.S.NO.280 of 1993 for a declaration that the agreement of sale has been rescinded, and for recovery of possession of the property with past damages. The Court below decreed the suit as prayed for and dismissed the defendants' suit. The defendants in O.S.No.44 of 1993 are the appellants.II The contention of the plaintiff:

(2.) THE contention of the plaintiff in the suit is that the first defendant entered into an agreement of sale in favour of the plaintiff on13.9.1992 and on the same date, Rs.20,000/- had been paid as advance. THE balance of Rs.24,000/- was payable in three months. THE document had been signed by the first defendant as well as the second defendant. THE plaintiff's contention was that he has been ready and willing to pay the balance amount and secure the sale deed to perform his contract . THE draft sale deed had been drawn up on stamp papers on 3.12.1992 and on that day, the balance amount had also been paid. All the defendants viz. the sons of the original party to Ex.A1 had also joned on the execution of the document. THE plaintiff seeks for enforcement of the agreement on such terms.III THE defence in suit for specific performance and reason for defendants' own suit for rescission:

(3.) BEFORE me, it is contended by the learned counsel for the appellants that the plaintiff had no consistent case. If the agreement dated 13.9.1992 had been superseded by the draft sale deed and it was drawn up on 3.12.1992, the plaintiff could not have sought for enforcement of the first document, since there had been a novation. The other contention is that the plaintiff had forcibly taken possession of the property, even when the agreement did not stipulate the handing over of possession. The possession was not handed over under the document and his subsequent entry was clearly without permission. If Ex.A13 were to be taken, as a starting point for taking into possession, it gave out an entry date which had no bearing to the contention of the plaintiff that he took possession of the property fifteen days after the first agreement. The plaintiff had not come to Court with clean hands and the relief of specific performance being discretionary, ought not to be extended in favour of the plaintiff.VI Appraisal of the relative merits: