C. PALANISAMI CHETTI Vs. MURUGANNA GOUNDER

JUDGEMENT

(1.) WHILE the first defendant in O.S. No. 174 of 1974 on the file of the Court of the Subordinate Judge, Coimbatore, is the appellant in A.S. No. 346 of 1975, the 2nd defendant is the appellant in A.S. No. 88 of 1976. The plaintiff Muruganna Gounder, filed the suit for specific performance of Exhibit A -8, dated 5th December, 1973, the agreement for sale executed by the 1st defendant (the appellant in A.S. No. 346 of 1975) in respect of the suit properties for Rs. 18,750. Under the said agreement for sale the 1st defendant received an advance of Rs. 2000 and undertook to execute the sale on receipt of the balance of consideration of Rs. 16,750 within a period of 3 months from the date of the agreement. The suit property is an extent of 5.96 acres comprised in S. No. 408/6 and 408/8. The plaintiff has always been ready and willing to perform his part of the agreement. Though he called upon the 1st defendant to receive the balance of sale consideration and execute the sale deed the latter was avoiding. Later on, the plaintiff came to know that the 1st defendant had executed Exhibit A -1 sale deed, dated 12th February, 1974 in favour of the second defendant for Rs. 16,000. The said sale deed is said to have been executed pursuant to an oral agreement for sale by the 1st defendant in favour of the 2nd defendant. It is averred by the plaintiff that there Was no such oral agreement and though the consideration mentioned in Exhibit A -1, document was only Rs. 16,000 actually the 2nd defendant paid Rs. 24,000 to the 1st defendant. Exhibit A -1 sale deed itself was secretly executed at Coimbatore and not at Avanashi, which would have been the normal place for registration, just for the purpose of preventing the plaintiff from coming to know of the execution and registration of Exhibit A -1 sale deed. Even at the time the 2nd defendant took Exhibit A -1 sale deed he was aware of the prior agreement in favour of the plaintiff and that consequently he was not a bona fide purchaser for valuable consideration without knowledge of the earlier agreement for sale in favour of the plaintiff. It is on these allegations the plaintiff has filed the suit for the specific performance.

(2.) THE 1st defendant in his written statement contended that the 2nd defendant was originally the tenant of the suit lands and that his tenancy rights have been recognised by the Tahsildar. To avoid any hitch with the 2nd defendant, the 1st defendant had agreed to sell the properties to the former for Rs. 16,000, as early as Ippasi 1973. As per the said oral agreement the sale deed has to be executed within six months. Subsequently, the plaintiff persuaded 1st defendant to enter into the suit agreement on the representation that he would get the consent of the 2nd defendant and that he would himself take possession of the suit property from the 2nd defendant. However, when the 2nd defendant came to know of Exhibit A -8 agreement in favour of the plaintiff, he refused to surrender possession and insisted that the 1st defendant should execute a sale deed in his favour pursuant to the earlier oral agreement for sale. As a result a Panchayat was held on 10th February,1974 and the Panchayatdars returned a verdict that the 1st defendant should return the advance amount of Rs. 2000 to the plaintiff, that Exhibit A -8 agreement for sale in favour of the plaintiff should stand cancelled, that the plaintiff should return the document to the Panchayatdars and that the 1st defendant should sell the property to the second defendant. The 1st defendant denied that the sale was for Rs. 24,000 and not for Rs. 16,000. He further stated that the only remedy of the plaintiff was to return of Rs. 2000 from the 1st defendant.

(3.) ON these pleadings the trial Court raised the following issues for consideration: