R. NATARAJAN Vs. RAMAN (DECEASED) AND OTHERS

JUDGEMENT

(1.) This Second Appeal is filed against the judgment and decree dated 20.12.2013 made in A.S.No. 40 of 2012 on the file of the I Additional District Judge, Salem, reversing the judgment and decree dated 14.02.2012 made in O.S.No. 360 of 2008 on the file of the I Additional Subordinate Judge, Salem.

(2.) The appellant is the plaintiff and the respondents 2 to 5 are the legal heirs of the first defendant in the suit in O.S.No.306 of 2008 on the file of I Additional Sub Court, Salem. The appellant filed the said suit for specific performance of agreement directing the first respondent to execute the sale deed in favour of the appellant in respect of the suit schedule property free from encumbrance in pursuance of the agreement of sale dated 19.06.1993. According to the appellant, the suit schedule property belongs to the first respondent/defendant absolutely and he entered into an agreement of sale on 19.06.1993 with the appellant, agreeing to sell the suit property for total sale consideration of Rs. 1,44,400/-. The appellant paid a sum of Rs. 25,000/- as advance. It was agreed that the first respondent must enter into an agreement of sale with his brother's wife Chinna Irusayee, for purchase of her land for formation of road to reach the suit property. On the date of such agreement with Chinna Irusayee, the appellant must pay a further advance amount of Rs. 25,000/- and must pay the balance sale consideration within 11 months to get the sale deed executed. 2(a)The appellant paid Rs. 50,000/- on 12.11.1995, Rs. 43,000/- on 11.05.1998, Rs. 10,000/- on 27.01.2001 and Rs. 16,400/- on 10.07.2005 and thus paid the entire sale consideration of Rs. 1,44,400/- to the first respondent. The first respondent did not enter into an agreement of sale with Chinna Irusayee and did not execute sale deed in favour of the appellant even though he has received the entire sale consideration. The appellant issued a notice dated 27.3.2007 to the first respondent, as the first respondent was not coming forward to execute the sale deed in favour of the appellant. The first respondent sent a reply dated 4.4.2007 denying the agreement of sale and other allegations repudiating the suit agreement of sale. The appellant has filed suit from the date of denial of agreement of sale by the first respondent.

(3.) The first respondent filed written statement and denied execution of agreement of sale and receipt of advance and further payments from 1995 to 2005 and denied that he made endorsements on the dates mentioned by the appellant. The first respondent further stated that the appellant tried to enter into an agreement of sale with one Chinna Irusayee, who is the adjacent owner of the first respondent's suit property in front portion. The appellant got document from Chinna Irusayee and created false agreement of sale. The first respondent contended that the alleged agreement of sale was dated 19.06.1993 and the appellant has not taken any steps to enforce the said agreement and the appellant has tried to cheat and forcibly occupy the first respondent's property. The signature of the witnesses are all false and created by the appellant. 3(a)The first respondent executed settlement deed for the entire extent of 86 cents on his son viz., R.Thangavel on 14.12.2004 registered as document No.3094 of 2004. After the settlement deed, his son Thangavel, (fourth respondent herein) is enjoying the property along with other properties and paying the kist and he is the absolute owner of the suit property. The relief of specific performance is discretionary and equitable relief and it cannot be granted to the appellant as he has not come to the Court with clean hands and based on the genuine documents and prayed for dismissal of the suit.