SAMIDURAI UDAYAR Vs. THANGARASU UDAYAR

JUDGEMENT

(1.) The un-successful third defendant in O.S.No.47 of 1982 and plaintiff in O.S.No.288 of 1982, who lost the case before the lower Court as well as the lower Appellate Court, filed the present second appeals before this Court.

(2.) The plaintiff filed a suit for specific performance of an agreement to sell certain items of properties against one Lakshmi Ammal, her son Dhanarasu Udayar and Samidurai Udayar-the subsequent purchaser-the present appellant is the third defendant in the above said suit. The said Samidurai Udayar executed a sale deed in respect of the said suit properties on 01.10.1976. Thereafter, he was put in possession in the suit property and possessory mortgage on the same day. On 13.06.1981, the sale agreement was entered into between the plaintiff and the defendants 1 and 2 for sale consideration of Rs.12,000/- accordingly, plaintiff had paid a sum of Rs.5425/- as an advance amount. Since the defendants 1 and 2 have not executed the sale deed thereby the first respondent/plaintiff filed a suit for specific performance against the defendants. The lower Court decreed the suit and the lower Appellate Court confirmed the decree. Aggrieved by the same, third defendant filed Second Appeal before this Court.

(3.) The learned counsel appearing for the appellant submitted that though the third defendant/ appellant purchased several properties from the defendants 1 and 2, however, some of the properties were not covered under the sale agreement dated 106.1981. Hence, the properties which are not mentioned in the sale agreement may be excluded from the decree passed by the Courts below. Admittedly, the suit for specific performance was filed in respect of S.Nos.45/1-2.68 cents, 47 > - 1 share, 352/3-0.45 cents, 44/3 - 0.17 cents, 44/7-0.50 cents, 44/17- 0.22 cents, 44/13-0.29 cents and 44/15-0.16 cents. The above suit properties covered under the sale agreement dated 106.1981. Accordingly, the lower Court decreed the suit in favour of the plaintiff/3rd respondent in the above suit properties. However, the properties situated in S.Nos.352/11, 352/3 and 47/3 are not mentioned in the sale agreement dated 106.1981. The first two items of the properties are situated in Mu.Parur village and the other item of property is situated in Me.Mathur Village. When the properties are not mentioned in the sale agreement, the appellant/3rd defendant is entitled to claim the properties.