RANJITHAM AMMAL Vs. MARAGATHAMMAL

JUDGEMENT

(1.) BOTH the above appeal suits, which are connected matters are directed against the common judgment and decree dated 30.10.1984 made in respectively O.S.Nos.69 of 1979 and 412 of 1983 by the Court of Subordinate Judge, Coimbatore, thereby dismissing the suit in O.S.No.69 of 1979 for specific performance, but ordering the defendants therein to return the advance amount of Rs.16,000 to the plaintiff without interest and decreeing the other suit in O.S.No.412 of 1983 directing the defendant therein to surrender possession of the suit land to the plaintiffs, which is a suit for recovery of possession of the suit properties.

(2.) SO far as the subject matter and the rival parties in both the suits are concerned, they are one and the same. The plaintiff in O.S.No.69 of 1979 is the defendant in O.S.No.412 of 1983 and the defendants in O.S.No.69 of 1979 are the plaintiffs in O.S.No.412 of 1983. In fact, the suit in O.S.No.412 of 1983 had been originally filed in the Court of District Munsif, Coimbatore as O.S.No.360 of 1979 and the same having been transferred to the Court of Subordinate Judge, Coimbatore, wherein a case in O.S.No.69 of 1979 was already pending, for a joint trial to be held and a common judgment to be delivered, came to be re-numbered as O.S.No.412 of 1983. Even the appeal in A.S.No.838 of 1984 concerned with O.S.No.69 of 1979 has been preferred before this Court and the other appeal in Tr.A.S.No.964 of 1985 concerned with O.S.No.412 of 1983 had been originally preference is the Court of District Judge, Coimbatore and on transfer to the file of this Court, has come to be listed jointly for hearing both these appeals by one and the same court for a common judgment to be delivered.

(3.) IT is further contended in the written statement that the other mortgage to one Rajagopal Naidu is a matter to be established as debt due; that withholding the said sums was the understanding between the parties; that the society debts are true but the figures are not correct and that the first defendant is not a surety for commercial tax due from the said Nandagopal; that they sent the list of creditors to the plaintiff on 21.9.1978 under certificate of posting; that the defendants were at the office of the Register as per telegram on 21.9.1978 and 22.9.1978 for registering a document in favour of one Murugesan, as such the default was on the part of the plaintiff; that the defendants have not violated the terms and conditions of agreement; that mediation was done in December, 1978 and the draft sale deed was given to the defendants only then; that a suit to recover possession is filed by the defendants in the District Munsif's Court, Coimbatore and the plaintiff has filed a suit in O.S.No.72 of 1979 for injunction as to the use of the motor and pump set and that the agreement only guarantees Rs.32,000 that if the defendants default is established and the plaintiff is not entitled for specific performance and more so, when she has defaulted, she is not entitled to the refund of advance amount of Rs.16,000.